Trump's Promise to Jail Clinton Is a Threat to American Democracy
“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.” And he left no ambiguity as to the intended result. “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 is not how special prosecutors work. There are a number of legal mechanisms for the appointment of special counsel by the attorney general, all designed to allow for investigations of executive-branch officials free from the threat of political interference. Trump proposed the opposite: Directing his attorney general to appoint a prosecutor to go after a political rival who he’s publicly said should “be in jail.”
This is not how the presidency works. When Richard Nixon tried to interfere in an ongoing investigation, Attorney General Elliott Richardson resigned. And even if Trump could find a more malleable attorney general, and discard precedent, he’d still lack the power to jail Clinton unilaterally. Presidents are not in charge of the law, but of its faithful execution.
This is also not how democracies work. Elected officials do not jail their foes. The Constitution specifically prohibits bills of attainder—legislation designed to punish individuals, thereby circumventing the judicial process—to bar despotic rulers from persecuting their opponents. The jailing of political opponents is a feature of repressive dictatorships, not vibrant democracies.
But it is fully in keeping with how Trump’s campaign has worked. He accepted the nomination in Cleveland in July. The defining chant of that convention was not, “Make America Great Again.” It was “Lock Her Up!”
And on Sunday, that’s exactly what Trump vowed to do.
On the convention floor in Cleveland, I wandered over to the New York seats. Here were the delegates from Trump’s home state, who’d also been represented in the Senate by his Democratic opponent. I wanted them to explain to me what the chant meant to them. Did they literally wish to put Clinton behind bars?
“She’s mean and nasty,” said Tony Scannapieco, the Republican chair of New York’s Putnam County. “She’s a crook. She should be locked up.” David DiPietro, a state assemblyman from Erie County, had also joined the chant. He felt that she’d intimidated FBI Director James Comey into not pursuing charges. He “didn’t want to be found dead,” DiPietro said. “It’s as simple as that.” Bill Reilich, the town supervisor of Greece, New York, was equally emphatic. “99.9 percent of the people are law abiding citizens, and they know that if they break the law there will be consequences,” he said.
Not every delegate I tracked down felt the same.
Josh Filler, a delegate from Maine, told me the chant was “a euphemism for ‘hold her accountable,’” and was frustrated that the media insisted on taking it literally. The chant, explained North Carolina delegate Rion Choate, was just a way to “say that she’s wrong for the country; that she’s not been honest.” Like a lot of the delegates with whom I spoke, he was upset by FBI Director James Comey’s press conference, which he felt had short-circuited the process. “I think that Director Comey should have let due process of law proceed,” he told me.
Many were angry at what they perceived as a double standard, one that led to ordinary Americans being punished for rules a privileged elite could casually flout. Outside, at a protest, I met Donald Philip Larson, the Republican nominee in Ohio’s 9th congressional district. He told me he’d been a communications officer on a fast frigate; if he’d brought home classified communications as Hillary had done, he said, he’d have landed in jail. “I think it’s very dangerous when someone running for president is held to a different set of rules,” said Kyle Kilgore, a 22-year-old delegate from Virginia.
Wes Nakagiri walked around the convention floor in an orange prison jumpsuit, wearing a Hillary Clinton mask. (Actually, the Michigan delegate told me, it was sold as a ‘female presidential candidate’ mask, but Hillary’s features were unmistakable.) “Hillary has trouble with the truth,” he said. “I’m sure everyone here knows; I’m not sure everyone in America knows what she did.” He, too, was chanting “Lock her up,” but he mused that it might be “better for Trump that she’s not locked up,” because her continued freedom illustrated a system rigged in favor of insiders.
The streets around the convention hall were lined with T-shirt vendors. Sales were generally disappointing. One of the rare hot items featured a knock-off of the Clinton campaign logo, and the words: “Hillary for Prison, 2016.”
Watch closely at any Trump rally. You’ll find it sprinkled through the crowd.
This sort of rhetoric is hardly without precedent. Nineteenth-century American politics was a rough-and-tumble affair, with speakers frequently employing rhetoric that might shock contemporary audiences. And the rhetoric was often a prelude to violence. Brawls and duels were not uncommon, and lynchings not unheard of.
In more recent decades, impassioned partisans have called for the use of criminal sanctions, or even violence, against their political opponents. In 1993, readers of National Review found an ad offering anti-Clinton bumper stickers: “Impeach him hell—get a rope.” In the wake of the Iraq War, many on the left and the libertarian right suggested that George W. Bush be charged with war crimes. At a Sarah Palin rally in Scranton, Pennsylvania in October of 2008, a Scranton Times-Tribune reporter heard a man shout, “Kill him!” (The Secret Service investigated the report, interviewing 20 witnesses, but was unable to corroborate it.)
On occasion, such rhetorical attacks have seemed to inspire actual violence. There were 5,000 “Wanted for Treason” flyers distributed in Dallas ahead of John F. Kennedy’s assassination.
But such episodes remain exceptional. They are generally the province of activists, not candidates, who cross these lines at their political peril. When Sharron Angle suggested that fixing Congress might require “Second Amendment remedies” in 2010, in helped sink her congressional campaign.
In this, as in so much else, Trump has proven exceptional. In August, he mused aloud before a crowd in Wilmington, North Carolina:
Hillary wants to abolish, essentially abolish the Second Amendment. If she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people—maybe there is, I don’t know.
However he meant it, many heard it as an implicit threat of violence; that firearms could be used to oppose Clinton and the judges she’d appoint.
There was irony in the location. It was in Wilmington, in 1898, that a mob of armed white men exercised their Second Amendment rights to deprive thousands their fellow Americans of their own constitutional rights, and some—perhaps as few as nine, perhaps as many as 300—of their lives.
The Wilmington insurrection was a coup d’etat. The officials of a mixed-race government were attacked by the political foes they had defeated at the ballot box. The mayor, board of aldermen, and police chief were forced to resign at gunpoint. More than a thousand black residents fled the city. The mob rampaged through Wilmington—burning, beating, and killing—intent on restoring white supremacy.
It succeeded. The example of Wilmington helped enshrine Jim Crow throughout the South. An embattled minority had managed, through violence and intimidation, to roll back the social and demographic changes it loathed.
It seems unlikely that Trump knew any of this history when he casually suggested that guns might provide an answer to losing an election, much as it seems unlikely that he was acquainted with the workings of the Department of Justice before he casually asserted he’d direct the attorney general to appoint a special prosecutor.
But if it’s history that Trump does not know, it’s history with which American voters might profitably acquaint themselves before November. The smooth functioning of American democracy rests on the acceptance of established norms. When they are violated, whether deliberately or out of careless disregard, the results can be catastrophic—and sometimes, bloody.
This is not a nation immune from political violence. To the contrary. Its political history is sanguinary. To the extent that elections today are peaceful and orderly, it is because earlier generations witnessed the alternatives, and fought hard to secure the legitimacy of the democratic process, and to contain political conflicts so that they would not expand to become violent conflicts.
Whichever party loses in November will need to find a way to accept the results, even if its members have convinced themselves during the heat of the campaign that the election of their opponent portends the dissolution of the Republic. And the members of whichever party prevails will need to resist the impulse to avenge themselves for the attacks they’ve endured, the outrages they’ve suffered over the course of a long and bruising campaign.
On Sunday night, Donald Trump showed again that he has failed to grasp this essential lesson. He’s running out of time to learn it.