At last night’s Democratic debate in Miami, Hillary Clinton practically dared the Justice Department to indict her. In responding to a question about whether she would leave the race if she is indicted, she said “that’s not going to happen. I’m not even answering that question.”
Many people who would similarly dare the DOJ might not like what happens next. Secretary Clinton, however, may well be right. I have said before that I think this case is more complicated than either side wants it to be, for reasons of both statutory interpretation and politics. Ruth Marcus had a piece yesterday at WaPo that explained why it was unlikely that a federal prosecutor would even seek an indictment. She called Clinton’s conduct “political idiocy” but not criminal. Marcus, too, may ultimately be proven right, though I thought her analysis of 18 U.S.C. 793(f) was especially flimsy. “Gross negligence” is a common term in the criminal law, and has a well-accepted understanding. And as Marcus even notes in her piece, the DOJ has successfully prosecuted others using this statute.
Enter Donald Trump.
Now, when I hear from supporters of Donald Trump, I hear two distinct groups offering entirely inconsistent arguments for Trump. One group says that they support Trump because they like the things he says and are confident that he is being honest. They agree with him, and they think he really will build a big, beautiful wall on the southern border and force Mexico to pay for it, and he really will impose a ban on all Muslims from entering the country. They don’t mind the juvenile taunts and approve of the grandiose bluster. Another group, however, supports Trump because they don’t believe what he says. They think the rhetorical bluster, childish antics and thin-skinned diatribes are an act, just for show, for the rubes. Instead, they say, he is a serious, educated, and accomplished businessman who could not possibly believe the things he says (again, that stuff is for the ignorant masses, in their view), and instead will pivot to a more serious posture once he becomes President.
Both of those groups cannot be right. Those two views of Trump are irreconcilable. One group has to be wrong about him. But which one?
On the same day he was telling the Nation that Islam hates America (which group was that statement for?), Trump also told a town hall audience in North Carolina that if elected, he would direct the DOJ to indict Clinton. Did he mean it, or was this just for show?
Sure, it’s typical Trump bluster. But it also raises a fascinating, and complicated, legal question about presidential power. Should the President be able to order a person to be prosecuted? One might think the answer to that question is “of course.” The DOJ works for the President, after all, and the President can direct and oversee any action by any of his subordinates, the argument goes. Therefore, because prosecuting crimes is a quintessentially executive function, and those who prosecute crimes work for the chief executive, the President should be able to direct the Attorney General to bring a criminal prosecution. Moreover, it could be said, if the President can be involved at the back-end of the system (granting pardons and reprieves), he should be able to direct his subordinates on the front-end, as well.
Still, as the Politico piece notes, there is a long tradition of presidents refraining from involvement in charging decisions at DOJ. This tradition became especially important after Watergate and the Saturday Night Massacre, when the sentiment prevailed that it was important to keep criminal prosecution and politics separate. That desire for prosecutorial independence has produced some remarkable proposals, not the least of which was the ill-conceived independent counsel law. But consider how it would look if a president directly ordered the criminal prosecution of his election opponent. Such a scenario would arguably threaten the integrity of the rule of law. And federal prosecutors have special legal and ethical obligations beyond following orders of their superiors: they are governed by the principles of federal prosecution at DOJ and the legal standards for bringing a case to a grand jury. Even assuming the president desires a prosecution, there must at least be probable cause for an indictment.
Of course, there’s this: what if the person is guilty of a serious crime? Isn’t the rule of law threatened by failing to prosecute? I suppose there is a middle ground here: yes, the rule of law demands a criminal prosecution, but it should be ordered and managed by the professionals at DOJ, not by the White House. But that just brings us back to the problem: if the professionals at DOJ do not do so, can they be ordered to do so by the President? Maybe the answer is yes, so long as probable cause exists. But would anyone trust Trump with this kind of judgment and authority? That may be the real problem with his statement.
Again, I do not yet know whether Clinton is guilty of a federal crime or if probable cause exists to seek an indictment. And I continue to believe that Trump is an anti-constitutionalist who abhors the separation of powers and is demonstrably unfit for the presidency. But this time, his raw, uninformed political dry-heaving actually spat out an issue worth thinking about.