Andrew C. McCarthy:
One of the sillier post-debate comments comes from Nicholas Burns of Harvard’s Kennedy School, who tweeted: “Threatening to jail a political opponent is anti-democratic and anti-American.”
Donald Trump did memorably say that Hillary Clinton “would be in jail” if he were president; but what he actually vowed to do was appoint a “special prosecutor” to look into Mrs. Clinton’s “situation” — by which he was obviously referring to the e-mail scandal.
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.
The Obama administration investigated Mrs. Clinton, at least ostensibly, for over a year. Is Professor Burns saying a politician should only be investigated by her political allies and may otherwise violate the law with impunity?
To get a sense of what a banana-republic Justice Department looks like, Burns might want to have a look at the Obama administration’s prosecutions of Dinesh D’Souza and Nakoula Basseley Nakoula. D’Souza is a political critic of the president’s who was subjected to a criminal prosecution (in which the Justice Department pushed for a severe jail sentence, which the judge declined to impose) for a campaign-finance violation of the petty sort that the Justice Department routinely allows to be settled by a civil fine. (For example, it declined to prosecute the Obama 2008 campaign for offenses that dwarfed D’Souza’s.) Nakoula, the producer of the anti-Muslim video the Obama administration falsely portrayed as the catalyst of the Benghazi massacre, was subjected to a scapegoat prosecution (under the guise of a supervised-release violation) intended to bolster the administration’s “blame the video” narrative.
Prosecuting a person who happens to be a politician for serious crimes is an affirmation of the American principle that no one is above the law. Gerald Ford may have lost the tight 1976 election due to his controversial pardon of Richard Nixon, there having been a strong sense, particularly among Democrats, that Nixon should have been prosecuted for his crimes.
I’ve recently lamented the Supreme Court’s gutting of the bribery statute properly used by the Obama Justice Department to prosecute former Virginia governor Bob McDonnell, a Republican. If there was a politicization problem in the McDonnell case, it involved the question whether the Justice Department enforces the anti-corruption laws evenhandedly. It was perfectly appropriate, however, to enforce those laws against someone who appeared to have violated them. Being a member of the party in opposition to the president should not make one a target, but neither is it immunity from righteous prosecution.
Significantly, Trump did not say he’d have his Justice Department investigate Clinton; he said he’d have a special prosecutor do it.