Trump's Threat to Jail Clinton Invites His Own Prosecution

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Donald Trump and Hillary Clinton at the presidential town hall debate at Washington University in St. Louis, Missouri, October 9, 2016. Michael Dorf writes that Trump is vulnerable to criminal prosecution for various of his shadier business dealings, especially the use of Trump Foundation funds to pay for Trump business expenses. If Trump really thinks it is appropriate for the winner of a presidential election to pursue a politically motivated prosecution against the loser, he ought to be more worried about his own fate. Why isn't he? Lucy Nicholson/reuters

This article first appeared on the Dorf on Law site.

Because my teenage daughter needed a ride home from her friend's house where she was watching the second presidential debate and I was the designated driver, I experienced this one a little differently from how I experienced the first 2016 presidential debate and the vice presidential debate—namely, sober.

That was poor planning on my part, but it does leave me in a position to write down my instant reaction without the need to wait for my head to clear in the morning.

After making a couple observations about style, I'll focus on one substantive point: Trump's threat to appoint a special prosecutor to look into Clinton's emails, should he become president.

But first: Both candidates interrupted each other, but Trump interrupted more. He also whined about the moderators giving Clinton more time and ganging up on him.

The latter complaints were groundless with one exception. At one point, Martha Raddatz answered Trump's criticism of the Obama administration for telegraphing its plans in Mosul, Iraq, by offering reasons why this might make sense.

Raddatz's response was sensible on the merits, but she shouldn't have offered a substantive rebuttal. Other than that, however, Trump's complaints probably came across as petulant. The interrupting cannot have played well either.

Mike Pence "won" the vice presidential debate because he appeared more cordial by interrupting Tim Kaine less frequently than Kaine interrupted him. The optics of a man interrupting a woman are even worse. Yet Trump went there. That was a stylistic goof.

Second, Trump also appeared to menace Clinton by standing in back of her during one of her early answers. I don't know whether this was his intent, but this looked quite bad, especially given the recent…er…context.

Also, there was more sniffling from Trump. Howard Dean's suggestion after the first debate that this might be the result of cocaine use by Trump was ridiculous, but the only reason he was even in a position to make the accusation was Trump's absurd denial of the fact that he was sniffling.

It's a terribly minor thing, but a professionally run campaign would put out a statement like this: "During both debates, Donald Trump could be heard apparently sniffling. He is recovering from a mild cold." Or "That is simply his breathing pattern when on a microphone."

But I guess they think that something like that would show weakness, so they simply denied the obvious fact that Trump was sniffling.

So much for style. There was much to chew on with regard to substance, but the moment that is understandably getting the most attention among people who care about law is Trump's statement that as president he would instruct his attorney general to appoint a special prosecutor to (re)investigate Clinton's use of a private email server when secretary of state and his follow-up interruption claiming that if he were president Clinton would be "in jail."

That line of attack was hardly unprecedented in this campaign. During the Republican National Convention, Trump manservant/New Jersey Governor Chris Christie gave an entire speech in the form of a plea to find Clinton "guilty" of various high crimes and misdemeanors. And "Lock her up" has been a familiar refrain of the Trump faithful.

Nonetheless, it was jarring to hear a candidate for president directly threaten his chief rival with criminal prosecution. As a great many people have observed already, such threats do serious damage to our legal and political institutions. Trump should be roundly condemned for the threat.

We are left with a seeming puzzle, however. Why did he do it? After all, Clinton has already been investigated by the FBI, which found that her approach to her email was "extremely careless" but also that "no reasonable prosecutor" would think that criminal charges are warranted. It is no doubt a talking point on the right that James Comey is somehow a Clinton stooge. (Here's an example from Breitbart.)

So maybe Trump really thinks that another investigation would yield a different result.

But even if so, (1) Trump will probably lose the election, and (2) Trump himself is potentially vulnerable to criminal prosecution for various of his shadier business dealings, especially the use of Trump Foundation funds to pay for Trump business expenses.

If Trump really thinks it is appropriate for the winner of a presidential election to pursue a politically motivated prosecution against the loser, he ought to be more worried about his own fate. Why isn't he?

The answer is that Trump is engaged in asymmetrical warfare. Clinton's campaign plays hardball when it needs to, but it upholds the basic verities of representative government. That's why during the first debate Clinton answered unhesitatingly that she would accept defeat if that is the voters' decision.

Trump said the same during that debate but then walked it back almost immediately thereafter, with his unsubstantiated claims about the election being "rigged" and what he "hears" about "certain areas in Pennsylvania."

Samantha Bee's pointed critique of Trump's fear of "riggers" nicely exposes the hypocrisy in the claim, but it is not just hypocrisy. It is also opportunistic cynicism.

Trump's threat to destabilize fundamental democratic norms is rooted in the sort of cynicism deployed by terrorists who embed themselves in civilian populations from which they launch attacks on civilian populations of the enemy. They violate the humanitarian law-of-war norm against attacking civilians while simultaneously exploiting the fact that the enemy abides by that norm.

Trump likewise threatens to abuse the prosecutorial power of the presidency should he win it, secure in the knowledge that Clinton would not do the same to him.

The framers of our Constitution, who studied the history of democracy, knew that democracy was vulnerable to devolving into authoritarianism. They structured elections for the presidency as indirect contests precisely so as to weed out demagogues and to ensure that people of virtue would rise to the top.

But the rise of the plebiscitary presidency has left the system vulnerable to a would-be Caesar (or, in Lewis Black's phrasing, an "Orange Julius Caesar").

The decline of the power of the parties qua parties in selecting presidential candidates has increased the vulnerability. Even in the recent period, we have been lucky. Our presidents have not always been wholly virtuous, but with the possible exception of Richard Nixon, they have not been sociopaths seeking power simply to vindicate their egos.

Trump is thus a long-foreseen threat against which the original institutional brakes of our constitutional system no longer operate: A would-be tyrant who exploits the mechanisms of liberal democracy in order to trash those very mechanisms.

His asymmetrical warfare will probably fail, but the fact that it has any chance of winning should be a sobering reminder that the fate of constitutional democracy ultimately rests only on the good sense of Us the People. I hope we have enough of it left.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at DorfOnLaw.org.

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