On prosecuting political opponents

I have endeavored to avoid jumping into the fray regarding the Trump tape that surfaced last Friday.  Others have adequately said everything there is to say.  And there can be no debate among intelligent people that Trump’s comments there are worthy of condemnation in the strongest possible terms (of course, I have been doing that for over a year now, and have openly wondered why so many others are so late to the party).  And then there are the allegations that emerged last night (see Politico’s piece here).  Governor Pence has attempted to rationalize his continued place on the ticket by emphasizing the nature of Christian forgiveness and grace.   That is surely a ground for forgiving Trump’s sins; it is not, though, a ground for establishing his character and fitness for the Presidency.  That a person has done something for which they should be forgiven is not to say that the person should be elected to high office.  Moreover, someone should ask Governor Pence: wouldn’t the idea of Christian forgiveness, and of God’s grace, extend to Bill and Hillary Clinton, too?  Or are those gifts available only to Republicans?

Additionally, the “Bill Clinton Is Also A Bad Guy” strategy is both illogical and self-defeating.  I am not sure how it benefits Trump to get into a morality contest with Bill Clinton.  Moreover, those who are firmly in the Trump camp already despise the Clintons.  Trump’s goal should be not to preach to the converted, but to expand his support by reaching educated, suburban Republicans (chiefly women, but men, too) who do not yet support him but who generally are not fans of the Clintons, either.  Most likely, the people in that category voted for George H.W. Bush and Bob Dole.  So saying to these folks, “but what about Bill Clinton?!?  Don’t be a hypocrite!” gets Trump nowhere.  The response from this cohort is readily apparent: “I didn’t vote for Bill Clinton, either.”  In other words, these folks cannot be accused of hypocrisy in refusing to support Trump on the grounds that he lacks the character and decency to be President.  And they do not regard Hillary Clinton and her husband as equally culpable in this regard.

But, of course, there are many, many other reasons not to vote for Donald Trump.  Throughout the past year, I have identified two chief reasons why Trump is categorically unacceptable, especially for conservative Republicans: (1) he does not appear to know, or care, anything about the nature and scope of constitutional government in America; and (2) he does not appreciate the importance of limits, of restraint, of boundaries.  These shortcomings have been amply displayed throughout Trump’s campaign.  And the second one is clearly implicated by the Access Hollywood tape and the allegations against him that he has kissed or groped women without their consent, and invaded the dressing room of pageant contestants in a state of undress.  But both flaws were revealed on Sunday night in St. Louis, and that is where I wish to focus, because this race is not over.

In particular, Trump said that he would have his Attorney General appoint a special prosecutor to consider whether to prosecute Hillary Clinton.  It was not clear to me the grounds on which such a prosecution would be undertaken.  Trump meandered between accusations regarding the Clinton emails, the Clinton Foundation, and her interview with the FBI.  Of course, her FBI interview occurred this past July, well after her service in the federal government had ended.  So it was not clear whether he wanted to prosecute her for actions while Secretary of State, or after.  Perhaps he meant all of the above.

In any event, the major problem is one that others (see, e.g., here and here) have now readily identified.  In this country, we generally do not condone a president’s use of prosecutorial power to imprison his political opponents.   It is especially problematic when the president has used prosecuting his opponent as a line of attack during a campaign.  While it is true that federal prosecutors work for the President, and that the President has power to “take care that the laws be faithfully executed,” there is a notable tradition of keeping Presidents distant from the exercise of day-to-day prosecutorial power, particularly when the President’s political interests or personal animosities would create the appearance of using such power improperly.  To say nothing of the fact that Trump seems to be ignoring the existing federal law on how special prosecutors get selected.  There is a legal framework for doing this kind of thing, and that framework does not include presidential whim.

Still, this matter is more complicated than it has been made out to be.  Indeed, some (see., e.g., here at NR) have argued that Trump’s statement at the debate was different.  This is not, they say, a case of Clinton being prosecuted because of her status as a political opponent.  Rather, they argue, there is credible, objective evidence that she committed federal crimes that generally would warrant prosecution.  Categorically refusing to prosecute her merely because she was the Democratic nominee for President would, the argument goes, effectively place her above the law.  Trump’s suggestion does not, then, have the same “banana republic” feel that it would have if there was no evidence of Clinton’s criminality.

That is not an unreasonable line of argument.  But it has several flaws when viewed in light of Trump’s own public comments.

First, Trump complicated that argument at the debate.  When Clinton said it was good that someone with Trump’s temperament was not responsible for law enforcement, Trump interjected, “That’s because you’d be in jail.”  Trump’s childish retort therefore makes it difficult for him to argue that the whole purpose of a special prosecutor is to carefully and objectively investigate the facts and weigh the evidence, regardless of where it may lead.  His statement effectively functions as a categorical determination of her guilt.  It therefore undermines any sense of objectivity, even with a special prosecutor at the helm (federal regulations require special prosecutors to be objective and to have no conflicts of interest).  Indeed, Trump’s rallies have repeatedly been characterized by the chant “lock her up,” and that is something to which Trump explicitly agreed recently.  Passing it off as an non-serious quip (a dubious explanation) still doesn’t help.

To make matters even more complicated, Trump spoke openly about his own administration – with no mention of a special prosecutor – prosecuting Clinton well before the FBI Director publicly discussed the nature of the evidence and its own findings.  I posted about this many months ago, discussing even then the complex constitutional and legal questions that such a presidential action would involve.  The fact that Trump was pressing this matter – not just her potential criminality, but his intention to personally use the powers of the presidency against her – months before she had even been interviewed by the FBI, and before the FBI released its own decision, suggests that Trump had already formed a conclusion about her guilt.  Now, he was not the only one.  Many (far more thoughtful and intelligent) people had expressed views about her alleged criminality prior to the FBI’s recommendation and the DOJ’s decision.  But the difference is clear: there is no evidence whatsoever that Trump’s earlier statements about prosecuting her were based in any way on a careful analysis of the facts and the law.

In other words, Trump may have had a more credible basis for seeking prosecution of Clinton if he had only kept his big mouth shut.  But by constantly making public statements about his view of her guilt and condign incarceration, without any meaningful legal analysis, he has created the appearance that any subsequent investigation would be a sham, even if done by a special counsel.

I am not among those who believe that it is easy to separate politics entirely from the criminal law.  The creation and definition of crimes often involve political calculations; the chief law enforcement officer and her subordinates are political appointees, who serve at the pleasure of an elected official.  Presidents and their politically-appointed subordinates make decisions about enforcement priorities, budgets, etc.  But I would distinguish these kinds of political considerations from the exercise of prosecutorial discretion on partisan or electoral grounds.  The exercise of federal prosecutorial discretion must be objective, apolitical, and non-partisan; it must be based solely on the facts, evidence, and law; and it must carefully consider the federal and public interests in bringing a prosecution, including whether the interests of justice can be served in other ways.  I have said before that “politicization of the Justice Department” is an overused charge.  But where it is true, it is gravely dangerous to the rule of law and to constitutional government.

So Trump’s threat to investigate and prosecute Clinton may arguably be defensible on some abstract theory, but it is surely ill-advised.  The fervor of his public comments – “lock her up,” Crooked Hillary,” etc. – including those he had made earlier in the campaign, have created the appearance that any investigation and subsequent prosecution would be based in substantial part on personal animus against Clinton.  Even if there remained a good faith legal basis for a criminal prosecution, the hostility that Trump has personally shown toward Clinton, and his repeated incantations about her imprisonment, would have the effect of transforming an otherwise legitimate inquiry into an attack on the rule of law.  And it would represent yet another instance in which Trump’s pettiness, petulance, and self-absorption led him to ignore appropriate boundaries.

 

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