Question for the legal scholars on the board. Is there anything stopping trump from telling Barr to charge Obama with treason? We know that trump is all in with maga and q, and with seemingly all of them calling for Obama to be charged, why wouldn't they do it? Are there any tangible repercussions that would deter trump and Barr from charging anyone with anything they want to? They don't need a court order to bring charges, correct?
Well, Obama would have to be indicted by a grand jury. Quite unlikely.
Just clarifying, but there has to be a grand jury indictment for the AG to simply charge someone for anything or is this just a law for a treason charge?
The Constitution sets certain boundaries regarding treason. For example, the prosecution must have two witnesses to the same overt act of treason. However, all federal crimes are enabled by statute. Treason is a defined federal crime, and the enabling statute conforms to the Constitutional requirements. To charge Obama--a private citizen--with treason, he would need to be indicted by a grand jury. I don't see anyway around that.
Obama is a private American citizen. He has due process rights, and that includes probable cause to arrest and detain, and the requirement of a grand jury indictment if not in custody.
I'll ask another way. Let's say trump sees one of these tweets saying that Obama is being charged on Monday and he wants to make that happen. Isn't that as easy as Barr using the DOJ to make the charge, he doesn't need a judge or a third party to literally draw up a charge? He's publicly talked about pardoning defendants while trials are literally happening, clearly rule of law means nothing to this admin. What's the check and balance for a president and an AG circumventing the criminal justice system for malicious prosecution?
I'm a little over my skis, as I don't normally dabble in criminal law, but what do you mean by "draw up a charge"? Everyone has due process rights (including probable cause to be arrested in the first place), and among other things that means you can only be detained for a short period of time before having a bond hearing (48-72 hours, I think), at which point any bogus stuff like you're describing should be sniffed out in open court. Neither Trump nor anyone else could cause the arrest of a former president on trumped up charges without facing extreme scrutiny, backlash, and ridicule. It would be political suicide, and it wouldn't take long.
Unless an officer personally witnesses the "treason" (or other unlikely exigent circumstances), you would need an arrest warrant signed by a judge in order to detain Obama. And in federal court, that requires an indictment by a grand jury.
So, the checks are (1) the federal judiciary, and (2) political consequences.