Den kunne de ikke lide, de gode jurister, som Fortune forhørte sig hos
Trump’s campaign manager Kellyanne Conway tried to downplay Trump’s threat, later saying it was just “a quip.” However, some prominent lawyers and legal scholars took umbrage at the threat and expressed alarm. Harvard Law professor Laurence Tribe told Fortune that even threatening such a thing was “incompatible with the survival of a stable constitutional republic,” while carrying out such a threat would constitute an “impeachable offense.”
Eric Holder, former U.S. Attorney General in the Obama Administration, immediately tweeted that Trump’s comment rendered him “unfit” for office.
Fortune reached out to all the former U.S. attorneys general that we could locate (including Holder), as well as several other prominent legal authorities and presidential historians, to get their views. Was what candidate Trump proposed legal? Was there precedent for it? Was it good policy? Here are the answers we’ve received so far.
Laurence Tribe, Professor of Constitutional Law, Harvard Law School
(Via email:) “Under the laws and Justice Department regulations governing federal prosecution, a President Trump would not have legal authority to direct the Attorney General to appoint a special prosecutor to ‘look into’ Hillary Clinton’s email situation or the Clinton Foundation or anything else. That’s not within a President’s power.
The only precedents for the kind of vow Trump made in last night’s debate are to be found in dictatorships and banana republics, not the United States. The closest parallel may be what [Viktor] Yanukovych (a former Paul Manafort client) did to [Yulia] Tymoshenko in Ukraine.
Making threats or vows to use a nation’s criminal justice system against one’s vanquished political opponent is worse than terrible policy: it’s incompatible with the survival of a stable constitutional republic and, under our Constitution, would represent an abuse of power so grave that it would be an impeachable offense—one reminiscent of Richard Nixon’s deliberate use of the IRS to go after his political enemies.”
[In a second email, Tribe added that] “some of the political leaders who’ve jailed their political opponents [in the past] have been Hugo Chávez, Recep Erdo?an, Robert Mugabe, Manuel Noriega, Augusto Pinochet and, of course, Vladimir Putin.”
Nej, man truer ikke sine politiske modstandere med fængsel. Men, men, men, skriver Andrew C McCarthy på National Review, Trump truede ikke Clinton fordi hun er hans politiske modstander. Han truede hende fordi hun bevidst og tydeligt har overtrådt loven. Law and order!
This is manifestly not a case of banana-republic criminalization of politics. Trump was not threatening to go after Clinton because she has the temerity to oppose him politically. He was committing to have a special prosecutor investigate Clinton for mishandling classified information, destroying government files, and obstruction of justice — criminal misconduct that has nothing to do with being a political adversary of Trump’s, and for which others who commit similar felonies go to jail.
The Obama administration investigated Mrs. Clinton, at least ostensibly, for over a year. Is Professor Burns saying a politician should only be investigated by her political allies and may otherwise violate the law with impunity?
To get a sense of what a banana-republic Justice Department looks like, Burns might want to have a look at the Obama administration’s prosecutions of Dinesh D’Souza and Nakoula Basseley Nakoula. D’Souza is a political critic of the president’s who was subjected to a criminal prosecution (in which the Justice Department pushed for a severe jail sentence, which the judge declined to impose) for a campaign-finance violation of the petty sort that the Justice Department routinely allows to be settled by a civil fine. (For example, it declined to prosecute the Obama 2008 campaign for offenses that dwarfed D’Souza’s.) Nakoula, the producer of the anti-Muslim video the Obama administration falsely portrayed as the catalyst of the Benghazi massacre, was subjected to a scapegoat prosecution (under the guise of a supervised-release violation) intended to bolster the administration’s “blame the video” narrative.
Prosecuting a person who happens to be a politician for serious crimes is an affirmation of the American principle that no one is above the law.