John Dean: Lock Her Up! Trump's Banana Republic Justice

Donald Trump at a rally in Portsmouth, New Hampshire, on October 15. John Dean writes that Trump has broken new ground in modern presidential campaigning by declaring that as president he will send his opponent to prison. Jailing a political opponent is the tactic of dictators; it is the way campaigns are run in third-world countries that pretend to be democratic. This is the stuff of banana republics, not mature democracies. Jonathan Ernst/reuters

This article first appeared on the Verdict site.

Trump supporters started selling T-shirts with "Prison for Hillary" and chanting "Lock her up" at rallies well before the GOP convention. But the nationally televised convention in July provided a worldwide audience to criminally attack Mrs. Clinton.

Frankly, I was surprised the attack was led by former U.S. Attorney and current Republican Governor of New Jersey Chris Christie, who is in Donald Trump's inner circle. He has the candidate's ear.

At the GOP Convention, Christie used his spotlight address to criminally indict the Democratic nominee, speaking as a "former federal prosecutor" and asking the crowd at Cleveland's Quicken Loans Arena after each of his charges whether she was "guilty or not guilty?"

In lynch-mob fashion, the crowd shouted "guilty" to everything: The rise of ISIS, the use of a private email server when she was secretary of state, even the turbulence in the Middle East. Guilty. Guilty. Guilty.

Christie charged Hillary was the "chief engineer of the disastrous overthrow of [Muammar el-]Qaddafi in Libya;" she "amazingly fought for two years to keep an Al-Qaeda affiliate off the terrorist watch list," which resulted in the kidnapping of hundreds of young girls by Boko Haram: Guilty, Lock her up.

Christie claimed she was responsible for the deaths of the 400,000 people killed in Syria's civil war. Guilty.

It went on and on. A New York Times fact-check shows that Christie twisted, distorted and outright lied about his facts. No one bothered to mention that this former federal prosecutor did not cite a single criminal law she had violated, for there were none. This was pure demagoguery of the ugliest kind.

And it has not stopped. Apparently Christie has advised the Trump campaign to continue calling for criminalizing Hillary's conduct, charging her for anything and everything, for it has continued. All generalities—for when they get specific, the charges fall apart. For example, in a prior column I set out the bogus case of perjury GOP lawmakers concocted trying to get Hillary indicted.

Most recently, and more strikingly, is the escalating of these bogus charges by Donald Trump, the candidate himself. While pointing his finger at Mrs. Clinton during the second presidential debate, the following exchange occurred:

TRUMP: I'll tell you what. I didn't think I'd say this, and I'm going to say it, and hate to say it: If I win, I'm going to instruct the attorney general to get a special prosecutor to look into your situation because there's never been so many lies, so much deception.…

A very expensive process, so we're going to get a special prosecutor because people have been, their lives have been destroyed for doing one-fifth of what you've done. And it's a disgrace, and honestly, you ought to be ashamed.

CLINTON: Let me just talk about emails, because everything he just said is absolutely false. But I'm not surprised.… It's just awfully good that someone with the temperament of Donald Trump is not in charge of the law of our country.

TRUMP: Because you'd be in jail.

Trump's campaign manager and spokeswoman, Kellyanne Conway, claims it is just a "quip." This is hardly an explanation when Trump keeps repeating it with increasing fervor, at rally after rally.

He now calls Bill and Hillary Clinton a criminal enterprise. He calls for her prosecution as part of his stump speeches.

What Is to Be Made of Such Appalling Behavior?

Donald Trump is not an attorney. But the attorneys surrounding him are certainly not giving him good advice, particularly Chris Christie as a former U.S. attorney.

Trump & Company have broken new ground in modern presidential campaigning by declaring that as president he will send his opponent to prison. This, of course, has thrilled Trump's base of supporters. In a campaign with too many appalling events to catalog, this new effort to criminalize an opponent is about as troubling as they come.

Jailing a political opponent is the tactic of dictators; it is the way campaigns are run in third-world countries that pretend to be democratic. This is the stuff of banana republics, not mature democracies.

As every prosecutor knows and more people should understand, with time and money, sooner or later most anyone can be charged, if not convicted, with criminal conduct.

As a former U.S. attorney, surely Chris Christie must be aware of the warnings given by U.S. Supreme Court Justice Robert Jackson, when serving as attorney general of the United States. Jackson delivered what has become a classic speech to a conference of U.S. attorneys about the powers of federal prosecutors. Everything Jackson said in 1940 remains applicable today.

It was a relatively brief and to the point talk (about 1,600 words) that I would encourage everyone read. But allow me to draw attention to a couple of passages because they relate to the untoward new theme of the Trump campaign:

The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous.

He can have citizens investigated, and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed.

The prosecutor can order arrests, present cases to the grand jury in secret session, and, on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.

He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.

While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. [Emphasis added.]...

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.

Former Attorney General Jackson goes on to explain that the kind of prosecution that Donald Trump is calling for is exactly what federal prosecutors should not be doing, so it is horrifying that former U.S. Attorney Chris Christie gave his show trial speech at the convention and is apparently encouraging his candidate to call for such abhorrent conduct. (Demagogues like Trump do not have the sense to know better than to reject such approaches.)

Ironically, as I write this, Governor Christie now finds himself under criminal investigation, with a judge authorizing a criminal summons into his role in Bridgegate. Christie must surely hope that the prosecutor investigating his conduct is not following the tactics he and Trump are calling for in going after Hillary.

John W. Dean is a former counsel to President Richard Nixon.

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