There were plenty to pick from, but arguably the most shocking moment in Sunday night’s presidential debate came when Donald Trump responded to Hillary Clinton’s statement that it was just as well her opponent was not in charge of the law. “Because you’d be in jail,” retorted Trump, who had also just said that, if elected, he would instruct his attorney general to appoint a special prosecutor to investigate Clinton’s use of a private email server while she was secretary of state.
Eric Holder, the former attorney general, tweeted: “Be afraid of any candidate who says he will order DOJ/FBI to act on his command This is dangerous/so is @realDonaldTrump – he’s not qualified.” He added: “In the USA we do not threaten to jail political opponents. @realDonaldTrump said he would. He is promising to abuse the power of the office.”
Others compared Trump to dictators such as Uganda’s Idi Amin. Chants of “Lock her up” are a regular feature of Trump’s rallies, but on Monday his campaign manager, Kellyanne Conway, claimed that the threat “was a quip” and that he was “channeling the frustration of thousands of voters he hears every day”. Legal experts argued that, even in the increasingly unlikely event of a Trump presidency, the odds of Clinton being put behind bars are “infinitesimally small” in a constitutional democracy born out of revolution against the absolute power of monarchs. Henry Chambers, a professor at the University of Richmond’s school of law, said: “He could start the ball rolling by suggesting to the Department of Justice that it start an investigation, but even then it’s kind of nuts. The idea that he could decide on his own, ‘I will put Hillary Clinton in jail,’ is bizarre squared. He himself would be threatened with impeachment
Chambers said he was not unduly concerned by the Republican candidate’s remarks, in part because he felt Trump was highly unlikely to win. “I still trust in America and I still trust that even a guy like Rudy Giuliani still believes in proper behaviour and if there’s nothing there, they’re not going after her, even if she’s Hillary Clinton. I still believe that at the end of the day we’re a government of laws, not a government of men.”
Clinton has already been investigated by the FBI, which found her handling of classified information to have been careless but not criminal. Should Trump pull off a dramatic win, he might, for example, name Chris Christie as attorney general. Christie has been an aggressive critic of Clinton and even used his Republican national convention speech to play prosecutor and put her “on trial” for endangering national security.
He might therefore appoint a special prosecutor with some relish. “The FBI decision does not preclude reopening the investigation into Clinton,” said a former government lawyer, who did not wish to be named. “It’s not like double jeopardy. James Comey of the FBI has already looked at it and decided it is not a criminal matter – but of course, under a different administration, there might be new pressure from on high.”
If the special prosecutor found sufficient evidence to bring an indictment, Clinton could in theory go on trial before a jury and, if convicted, the judge would determine her sentence. But such a scenario for a high-profile politician is highly unlikely, the lawyer said. In 1973 Vice-President Spiro Agnew admitted evading taxes and resigned under an agreement with the Department of Justice to avoid imprisonment; he was sentenced to three years’ probation and fined $10,000.
The lawyer added: “Normally these cases are settled short of a trial. But I can’t rule out the infinitesimally small possibility in an imaginary universe.”
America has a long history of special prosecutors and – a similar role – independent counsels. When Archibald Cox tried to force Richard Nixon to turn over tape recordings of his conversations in the White House during the Watergate saga in 1973, the president ordered his attorney general to fire him; the attorney general resigned. Independent counsel Kenneth Starr’s investigation led to Bill Clinton’s impeachment in 1998.
The law authorising judge-approved independent counsels lapsed 17 years ago. As things stand, the US attorney general has a relatively free hand to appoint a special prosecutor if they believe a criminal investigation is called for or if the Department of Justice is unable to conduct it independently.
Conservative lobbyist Curt Levey, executive director of the pro-free market FreedomWorks Foundation, said he wished Barack Obama had appointed a special prosecutor to investigate Clinton. But he dismissed Trump’s remark about jail as a “counterpunch” during the heat of debate.
“Whatever you think of Donald Trump, I don’t believe he really thinks he would put Hillary Clinton in jail. The president has no authority to jail people, and people in her position don’t normally get sent to jail for first offences.”
He added with a hint of irony: “President Bush did order the enemy combatants to go to Guantanámo Bay, but there’s no way Hillary Clinton could be described as an enemy combatant.”
Despite the electoral and legal improbabilities, Trump’s comments have caused consternation in America and around the world with their chilling echo of authoritarian regimes that lock up political opponents and journalists.
CONTINUE READING ON THE NEXT PAGE.. SCROLL DOWN