“The difference between stupidity and genius is that genius has its limits.” – Albert Einstein
“Dictatorships lock up the opposition, not democracies.” – Stanford University Professor Michael McFaul
“It smacks of what we read about tin-pot dictators in other parts of the world, where when they win an election their first move is to imprison opponents.” – Michael Chertoff, a former federal appeals court judge who also served as the secretary of Homeland Security and head of the Justice Department’s criminal division
“You would like a president with some idea about constitutional limits on presidential powers, on congressional powers, on federal powers.” – Randy E. Barnett, Georgetown University Law Professor
From the outset, the Republican National Convention in July was more about Hillary Clinton than it was about Donald Trump. T-shirts reading “Hillary for Prison” were sold outside the venue, Governor Chris Christie led a crowd in a ‘trial by mob’ and later dedicated his entire speech to accusing Clinton of numerous ‘wrongs’, and throughout the convention the crowd could be heard chanting “lock her up”. Since Ms. Clinton has not perpetrated a crime that would warrant her going to prison, one must assume that the Trump campaign, realizing Trump himself had no merit, determined their strategy must be to make his opponent appear to be evil, a criminal, a bad person. Not a single one of Mr. Christie’s accusations involved illegal activity, but rather policy decisions.
This is not the first time Trump has threatened to undermine the Constitution.
- “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” – Donald Trump, February 2016, threatening to override the 1st Amendment
- “Well, I’d probably appoint people that would look very seriously at her email disaster because it’s a criminal activity, and I would appoint people that would look very seriously at that to start off with. What she’s getting away with is absolutely murder. You talk about a case — now that’s a real case.” – Donald Trump, March 2016, when asked whom he might name to the Supreme Court
- “I didn’t think I’d say this but I’m going to say it, and I hate to say it, but if I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation because there has never been so many lies, so much deception, there has never been anything like it and we’re going to have a special prosecutor. Because you would be in jail.” – Donald Trump, October 2016, 2nd presidential debate
Trump has made more shocking, seemingly worse statements before, but this one is a statement that we might expect of an autocrat, a dictator, rather than a presidential candidate. In a democracy, we do not jail our political opponents simply because they are opposed to us. But, we ask ourselves, would it be possible for him to do the things he has threatened to do? Could he actually circumvent the law of the land and exchange it for the law of the Trump?
Under federal regulations, special prosecutors are appointed in sensitive cases where senior officials may have a conflict of interest. The rules empower the attorney general, not the president, to make the appointment, but Mr. Trump is unlikely to name an attorney general who disagrees with him. Some time ago, I predicted that Governor Christie endorsed Trump in exchange for a promised slot in Trump’s administration, most likely Attorney General. I am more convinced than ever that this is the case, and it is obvious, based on his convention speech, that an AG Christie would do precisely what Trump demands. Presidents also effectively exercise ultimate authority because they can fire cabinet officials who refuse orders. So yes, Trump could, as president, ensure the appointment of a special prosecutor to investigate Hillary Clinton’s emails, or anything else he claimed to be questionable. But, could he actually imprison her?
Hugo Chávez, came to power in Venezuela in 1999 by arguing that elites had corrupted Venezuela’s democracy. Rather than strengthening institutions, he took their power for himself and persecuted opponents, all while riding a wave of populist support. According to Sheri Berman, a professor of political science at Barnard College in New York, “Our institutions are strong enough to prevent him from doing anything truly horrific.” Professor Berman went on to say:
“The rhetoric alone is extremely dangerous, because it undermines people’s belief in our democratic institutions and process. What’s really dangerous here is taking people who are already disaffected or alienated, and making them believe that democratic institutions either don’t work or only work for people in power.”
The U.S. Constitution has a built in system of ‘checks and balances’, a three-branch system consisting of the Executive (president), Legislative (Congress), and Judicial (Supreme Court) branches. This system is intended to effectively ensure that no single person controls all aspects of government, no single person can become an autocrat. While the system has been tested before, it always held up, but how strong it it? Is it strong enough to prevent a Donald Trump from changing our “government of the people, by the people, for the people …” into a government of, by, and for Trump?
The question, then, is not only in the matter of his persecution of Ms. Clinton, but in other matters that seem to exceed his constitutional responsibilities, could he actually achieve his objectives through unilateral actions? George W. Bush and President Obama have both expanded the presidential powers through executive orders, agreements, and proclamations, each for valid, yet different reasons. Bush had 9/11 and the imminent threat of terrorism, and Obama had a Congress who blocked him at every turn. Trump has already promised to rely on executive orders to take action on immigration, energy and environmental regulations, trade issues, tax policies and numerous foreign policy matters. He has also promised to undo many of Obama’s executive orders. Perhaps the most important thing to remember about executive power is that there is nothing to stop a president from initiating action, even if unconstitutional. The consequences — whether legal or political — come after the fact.
If Trump issued an executive order to ban Muslim immigrants, the directive would stand unless and until checked by Congress or the courts. Congress can pass legislation to overturn an executive order, or through its power of the purse, it can refuse to provide funding. Federal courts can place an injunction on an executive order (as was the case earlier this year regarding Obama’s executive order to protect millions of undocumented immigrants from deportation), or declare a presidential action to be unconstitutional. Public opinion can also turn against a president, as can support within the president’s party, and both can have electoral consequences. Would any of this deter Trump? Of course not! Remember that this is the man who said he could stand on Fifth Avenue and shoot somebody without losing any of his supporters. This is the “man who would be king”.
As for Hillary Clinton, if Trump were elected I have no doubt whatsoever that he would have his Attorney General appoint a special prosecutor. I do not believe it would go any further, as there is simply no evidence of any illegal activities, and either way, she would have the best lawyers and any case brought against her would drag out long past the end of Trump’s reign of terror. However, there are still two things to consider: a) the cost of millions of dollars of taxpayer money, and b) the precedent it would set of seeking revenge against political opponents. Perhaps the best solution for that scenario is for President Obama to eliminate the threat by pre-emptively pardoning her before he leaves office in January.
A Trump presidency has the potential for danger and destruction of our democratic system as we have known it. Especially if he were to have a supportive Congress. It is a risk we cannot take. It is rather like donning leaky oxygen tanks to go deep-sea diving, saying “I think they will hold air well enough.” Or driving on an empty gas tank, or … well, you get the picture. But instead of affecting only one or two people, next month’s decision will affect over 300 million people for decades, if not centuries, to come.