I thought I was a hardcore #NeverTrumper but the truly hardcore #NeverTrumpers are the ones attacking Trump today for saying last night that Hillary would be in jail if he became president and appointed a special prosecutor. Supposedly that’s an ominous harbinger of banana-republicanism, threatening to lock up your political opponents once you seize power simply because you can. I agree with Andy McCarthy, though. We passed the banana-republic stage on Emailgate awhile back.
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…
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.
Powerful people avoiding charges for serious offenses that would have been prosecuted if committed by an average citizen is also something you’ll find in banana republics. Trump’s phrasing was characteristically sloppy and glib in suggesting that his administration’s reaction to Clinton’s malfeasance would be foreordained — “you’d be in jail” — but he’d already mentioned the special prosecutor by then. He wasn’t talking about some bizarre new caudillo-style form of summary imprisonment. And like it or not, it was a killer retort (a “quip”) to a hard shot from Clinton about how he lacks the temperament to be president. Context is everything here: If you’re aware of Emailgate, as most of the public is, then you know he was talking about actual crimes, not political crimes. Conway’s exactly right in explaining how that might have resonated with a national audience that strongly suspects Clinton got away with something they’d never get away with themselves. In a way, it’s a perfect summation of his message about holding the establishment to account. No more special rules for the elite. My guess, though, is that most viewers are processing the line the way they process most political developments, via motivated reasoning. If you’re pro-Trump, it was a moment of calling the corrupt elite onto the carpet. If you’re anti-Trump, it was a glimpse of the would-be dictator’s id. A few of us saw it the other way, but it was probably a small few.
Speaking of quips, I can’t resist posting this Weekly Standard exchange with Jeff Sessions after the debate about the Trump “Access Hollywood” audio. This is a quip too, right? I hope?
SESSIONS: This was very improper language, and he’s acknowledged that.
TWS: But beyond the language, would you characterize the behavior described in that as sexual assault if that behavior actually took place?
SESSIONS: I don’t characterize that as sexual assault. I think that’s a stretch. I don’t know what he meant—
TWS: So if you grab a woman by the genitals, that’s not sexual assault?
SESSIONS: I don’t know. It’s not clear that he—how that would occur.
Exit question: How many times over the past few years have Democrats attempted to prosecute their political opponents for largely political reasons? This list will get you started.