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Should Donald Trump Get A Special Prosecutor To Go After Hillary?

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Trump’s Special-Prosecutor Promise Is Not a Criminalization of Politics

The Obama Justice Department’s ‘investigation’ of Hillary Clinton was the real banana-republic event.

One of the sillier post-debate comments comes from Nicholas Burns of Harvard’s Kennedy School, who tweeted: “Threatening to jail a political opponent is anti-democratic and anti-American.”

Donald Trump did memorably say that Hillary Clinton “would be in jail” if he were president; but what he actually vowed to do was appoint a “special prosecutor” to look into Mrs. Clinton’s “situation” — by which he was obviously referring to the e-mail scandal. 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. Gerald Ford may have lost the tight 1976 election due to his controversial pardon of Richard Nixon, there having been a strong sense, particularly among Democrats, that Nixon should have been prosecuted for his crimes.

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.


I’ve recently lamented the Supreme Court’s gutting of the bribery statute properly used by the Obama Justice Department to prosecute former Virginia governor Bob McDonnell, a Republican. If there was a politicization problem in the McDonnell case, it involved the question whether the Justice Department enforces the anti-corruption laws evenhandedly. It was perfectly appropriate, however, to enforce those laws against someone who appeared to have violated them. Being a member of the party in opposition to the president should not make one a target, but neither is it immunity from righteous prosecution.


Significantly, Trump did not say he’d have his Justice Department investigate Clinton; he said he’d have a special prosecutor do it. As readers may recall, I am not a fan of special prosecutors (or “independent counsels”) because, as a constitutional matter, they are not truly independent of the executive branch — ultimately, they answer to the president (and, virtually always, to the attorney general). They can work, however, if the president (usually in consultation with the attorney general) chooses a lawyer of sufficient probity that the public can have confidence the investigation will be conducted with integrity and free of interference from Justice Department political appointees.

This is precisely what was not done in the Clinton e-mails investigation by President Obama and Attorney General Loretta Lynch (who, not coincidentally, first came to national prominence when appointed to a coveted U.S. attorney’s slot by Mrs. Clinton’s husband, who furtively met with Mrs. Clinton’s husband days before the investigation was closed without charges, and who is likely to retain her job if Mrs. Clinton is elected president). One need not be a Trump fan to discern that what he is proposing to do is far more appropriate than what President Obama has done in this regard — and, it should go without saying, than what Mrs. Clinton would do.

Finally, it is worth observing that a special prosecutor might well report back to a Trump Justice Department that prosecuting Mrs. Clinton would be futile. Were she to be indicted, Clinton would be able to raise the Justice Department’s highly irregular trading of immunity for key physical evidence; the even more irregular destruction of that evidence by government agents (according to an allegation by the House Judiciary Committee chairman); the interference with Clinton’s right to counsel by the Justice Department’s allowing key witnesses it was interviewing simultaneously to serve on Clinton’s legal team despite the fact that they were disqualified under ethical rules and federal law; and the highly unusual public proclamation by the FBI director that no reasonable prosecutor would indict Mrs. Clinton. An objective prosecutor might very well conclude that, although all these actions were wrong, they had done such harm to the prospects for conviction than an indictment should not be pursued. I am not saying this is necessarily the case. I am saying it might well be the case. It is a judgment that should await analysis by a competent prosecutor who is more objective about the matter than I am — and, evidently, than Professor Burns is.

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