When Should a President Prosecute Their Predecessor?

The standout moment at Sunday’s debate had to be Donald Trump’s thuggish threat to jail Hillary Clinton:

“If I win,” Donald Trump threatened Hillary Clinton during Sunday night’s debate, “I am going to instruct my attorney general to get a special prosecutor to look into your situation… People have been, their lives have been destroyed for doing one fifth of what you have done. And it’s a disgrace.”

“You know,” Clinton later responded, “It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country.” Trump couldn’t resist. “Because you would be in jail,” he broke in.

This outburst shows Trump’s contempt for the rule of law. The FBI, led by a Republican director, already investigated Clinton’s use of a private server and found that it was careless but not criminal. But Trump, like many far-right partisans, has made up his mind that she’s guilty whatever the evidence says. He wants to appoint someone not to investigate the case impartially, but to hand him the indictment he wants. He thinks of himself as prosecutor, judge and jury all in one.

As horrified prosecutors have protested, this is antithetical to how the American legal system is supposed to work. The president isn’t supposed to get personally involved in the prosecution of individuals. The Justice Department isn’t a tool he can wield to get revenge on his enemies. That’s not the attitude of a president, but of a banana-republic dictator. The closest parallel in American history to what Trump is proposing is the Saturday Night Massacre, when Richard Nixon fired the special prosecutor investigating Watergate.

The orderly alternation of power is what makes democracy possible. This is a great lesson of the American system that many aspiring democracies haven’t learned. For the government to function, one party has to hand off control to another peacefully. If you know that your political opponents will imprison you or worse as soon as they take power, you’ll fight like hell to keep your hold on power. That leads to massive corruption, vote-rigging, coups and civil war. In his obliterating arrogance, Donald Trump wants to bring that squalor to the U.S., and to preside over the destruction of our hard-won and precious democratic norms.

And yet, I can’t deny that this isn’t an absolute rule. For example, I’ve called on President Obama to prosecute the members of the George W. Bush administration who were responsible for torture. I thought that was appropriate at the time and I still do.* How can we square the circle and decide when exceptions are necessary to this vital democratic principle?

My view is that every principle has to have rational limits. A president can’t take office and immediately set about rounding up the opposing party. On the other hand, we also can’t have a situation where a presidential administration can break the law with impunity, knowing that their successors won’t dare to prosecute them. The law is worthless if it becomes an instrument of personal grievance, but it’s also worthless if it’s mere paper that can’t be enforced.

To split the difference, I think there are two conditions that have to be met.

First, the crime in question has to be a grave one. It’s a dangerous precedent for officials of one party to prosecute their rivals, which means it’s justifiable only under compelling circumstances. That means crimes that seriously jeopardize the U.S.’ safety, the integrity of our democracy, or our standing in the world. I’m willing to accept that anything less serious, from either side, should be let go. And yes, you could argue that this means politicians are held to a different standard than ordinary citizens. I accept the merit of this criticism, but the alternative is worse.

Second, if there’s an investigation, it has to be scrupulously impartial. In contrast to this, the most obvious fact about the conservative hounding of Hillary is how overtly partisan it is. A Republican Congress kept ordering new investigations of the Benghazi attacks when earlier ones didn’t find anything – a total of eight different committees spent more time and more hearings on the matter than was devoted to any other terrorist attack, even 9/11. One member, in a moment of accidental honesty, boasted about how its real purpose was to drive down her poll numbers. Meanwhile, very similar attacks on U.S. embassies during the Bush administration got no such scrutiny.

The same goes for Hillary’s e-mails. Other secretaries of state, including Colin Powell and aides of Condoleezza Rice, used private accounts in office without any comparable outrage. Senior Bush administration staff, including Karl Rove and Alberto Gonzales, used a private server hosted by the Republican National Committee and deleted millions of e-mails without archiving – again, to a collective response of crickets.

Double standard aside, the real flaw of Trump (and hardcore right-wingers in general) is their refusal to accept the result of the legal process. Not only are they pursuing their political enemies while overlooking identical conduct by their own side, they think they’re entitled to do-overs until an investigation arrives at the outcome they want to see. The Constitution has prohibitions on double jeopardy, bills of attainder, and other such safeguards for this exact reason. The relentless pursuit of political rivals over petty issues, at the very least, violates the spirit of these protections, and at the very worst, marks a profound betrayal of time-tested democratic ideals.

* This is especially relevant since there are cases for which Trump could face prosecution after the election. His Trump University scam, his slush-fund “charity” foundation, and the allegations of sexual assault are the three most obvious.

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