To the extent there was any sense that Trump’s explicit theme of prosecution/jailing Clinton was a one-off for the debate (or a quip, as campaign official Kellyanne Conway tried to argue on Monday), the last week has proven otherwise. Trump has referenced this in multiple rallies the past several days, including the specific detail about asking for a special prosecutor.
Charles Krauthammer (with whom I likely have not agreed about anything) argues that such rhetoric is dangerous and inconsistent with a mature, functioning democracy. A relevant excerpt:
Such incendiary talk is an affront to elementary democratic decency and a breach of the boundaries of American political discourse. In democracies, the electoral process is a subtle and elaborate substitute for combat, the age-old way of settling struggles for power. But that sublimation only works if there is mutual agreement to accept both the legitimacy of the result (which Trump keeps undermining with charges that the very process is “rigged”) and the boundaries of the contest.
The prize for the winner is temporary accession to limited political power, not the satisfaction of vendettas. Vladimir Putin, Hugo Chávez and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t.
One doesn’t even talk like this. It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.
Posted by Howard Wasserman on October 14, 2016 at 12:21 AM
Comments
“With Trump, we act like everything he says will come true.”
In my garbled comment, I addressed this, but if it is repeated, I’ll repeat myself. This is an exaggeration. Part of the problem here is even on puffery grounds, there is a range and then there is irresponsible. Such as violent imagery. The “pitchfork” example fits there, if we look at the level of Trump rhetoric. Single questionable comments v. a clear trend.
Trump hurts himself by making more reckless comments & has not really earned the same amount of basic respect of reasonableness as the average politician.
Posted by: Joe | Oct 16, 2016 2:24:21 PM
“Well. This was a useless thread.”
You’ve never been on the Internet before, have you?
Posted by: Total | Oct 16, 2016 2:13:13 PM
Useless? Depends on what your goal was. Mine was to put a garbled comment that needed to be edited. Seriously, not really seeing how the thread is much different than an average one. People make some good points, other comments provide a window into the mindset of different people.
Posted by: Joe | Oct 16, 2016 1:55:01 PM
Well. This was a useless thread.
Posted by: YesterdayIKilledAMammoth | Oct 16, 2016 12:48:41 PM
“That’s kinda exactly my point”
No, it’s not, because you’re eliding two very different statements. Obama saying that there would be an investigation and “if warranted” prosecutions would happen allows for the idea that prosecutions would not be warranted. It’s a statement that will investigate without making a conclusion about guilt. Trump’s statement is that he’s going to lock Clinton up — no investigation, no doubt. He’s already decided she’s guilty and should go to jail, and that’s the difference between something that’s reasonable and something that’s trending towards authoritarianism.
Posted by: Total | Oct 16, 2016 12:33:04 PM
Total,
That’s kinda exactly my point. I think if anyone else in any other election had said “We’re going to investigate and lock him up,” the “lock him up” part would have been understood as being a prediction about how the case will go. Basically “And I feel really strongly that this is going to end with a conviction.” Yet, with Trump it gets (I think willfully) misinterpreted as “And I’m going to lock her up regardless of the outcome.”
When Clinton says she’s going to lower taxes for the middle class, it’s understood to mean “I’m going to pressure Congress to do blah blah blah,” not “I’m going to send a detachment of Marines into the IRS.”
Posted by: Derek Tokaz | Oct 15, 2016 10:09:45 PM
“What if Obama said in an interview in April of 2008 that he would direct his Attorney General to review the claims that the Bush administration authorized and engaged in torture, and if warranted criminal prosecutions would be brought?”
The difference, as you should know, is that Trump isn’t talking about “investigating” and “if warranted.” He’s decided on Clinton’s guilt and he’s going to lock her up straight away. That’s the distinction between responsibility and fascism.
Posted by: Total | Oct 15, 2016 5:14:41 PM
What if Obama said in an interview in April of 2008 that he would direct his Attorney General to review the claims that the Bush administration authorized and engaged in torture, and if warranted criminal prosecutions would be brought?
Of course there’s no need to play “what if” because Candidate Obama did just that. He said that if elected he would investigate possible crimes committed by the prior administration.
It seems that the real distinction here is that in prior races we take everything the candidates promise, and run them through a filter for things that are just puffery, things that are unrealistic goals, and things the President isn’t really in charge of, and get left with a bunch of promises we understand won’t be fulfilled. With Trump, we act like everything he says will come true.
Posted by: Derek Tokaz | Oct 15, 2016 10:33:28 AM
ETA: Investigating members of the Bush Administration for torture etc. would raise the op-ed’s concerns; this shows how being absolute is a problem here. The general IDEA is sound as a whole, especially when the matter was already investigated by someone with some claim of neutrality.
Posted by: Joe | Oct 14, 2016 6:39:11 PM
“In 2008, places like Salon, Huffington Post, and others were clamoring for criminal charges against Bush administration officials.”
But, note how it didn’t go anywhere; seems to me that the overall ethos cited in the op-ed and elsewhere held. There you didn’t even have the level of investigation of Clinton. And, Salon is not “Obama” and Bush wasn’t his opponent then. And, torture etc. including given international law requirements is not this issue. How many differences must be cited?
Anyway, the op-ed goes beyond that specific issue, so is stronger for it.
The “pitchfork” comment was obviously metaphorical. He didn’t think ACTUAL “mob violence” would occur there. No, to anyone sensible, it does not REALLY “sound” like he was saying that. Because we know that a bit nuts & Obama was reasonable. Trump however comes off as a bit of a nut & his reckless comments, of particular concern here being specific examples of his opponents not some general group, are more worrisome. “Both sides” do it doesn’t quite work.
This isn’t the worse thing he said or anything but when did a candidate say his or her opponent should be in jail exactly? Do the things cited, including for specific people? We are left we general clearly metaphorical comments like the “pitchfork” one that sounds like it is not CK’s side is pressing.
Posted by: Joe | Oct 14, 2016 6:29:18 PM
Howard — you said that “It is not about the relative strength of the cases, but the avoidance of suspicion of political motivation.” So are you saying that if an unsuccessful Presidential candidate commits a federal crime on live TV the day before the election, the FBI shouldn’t prosecute the candidate under the administration of the opposing candidate if for some reason the incumbent administration doesn’t? I can’t believe you seriously think that electoral candidates have impunity to violate the law simply because prosecuting them if they lose would “avoid suspicion of political motivation.” Rather, it seems indisputable that the relative strength of the case must be considered and that, at most, the relative strength must be higher than normal given the potential suspicion of political motivation.
Posted by: Hash | Oct 14, 2016 5:55:36 PM
Again, I think it’s much ado about nothing. In 2008, places like Salon, Huffington Post, and others were clamoring for criminal charges against Bush administration officials. And while for criminal charges were never filed, there were investigations that weren’t concluded until 2012. And surely we remember Obama veiled threat to the bankers that his administration “was the only thing between [them] and the pitchforks.” That certainly sounds like a president threatening to allow mob violence if his policies are not followed.
Now, I’m sure someone’s all hot under the collar over this and ready to accuse me of supporting Trump. I don’t, but I also don’t think he’s really stepped outside the bounds of American political rhetoric. Let’s be honest. It was deplorable long before Trump came onto the scene.
Finally, I like Charles Krauthammer, but he has a flair for melodrama. His statements here are no different.
Posted by: YesterdayIKilledAMammoth | Oct 14, 2016 3:09:19 PM
The difference here is that the Federal Government has already decided in a fairly formal way not to bring charges against Hillary Clinton. That was not true in 1972 (some charges filed against underlings, investigation underway), 1988 or 1992 (special prosecutor working); and there was not a formal decision under the first Bush Administration not to charge any of its officials about facilitating torture (unless you count the torture memos, which were withdrawn). A Trump special prosecutor would be reopening something that the prior administration had closed.
Posted by: Mark Regan | Oct 14, 2016 1:57:17 PM
But I think this is the point. Because it is impossible to separate the politics from the situation–or at least the appearance of the politics of the situation–presidential candidates do not threaten, much less carry out, investigations and prosecutions of the prior administration. It is not about the relative strength of the cases, but the avoidance of suspicion of political motivation.
Posted by: Howard Wasserman | Oct 14, 2016 1:34:39 PM
If McGovern had promised to appoint a special prosecutor to investigate Nixon in 1972 (the year of the Watergate robbery) if he won, would that rhetoric have been dangerous and inconsistent with a mature, functioning democracy? What if Obama had promised in 2008 that he would appoint a special prosecutor to investigate Bush officials’ authorization of torture? What if Dukakis, in 1988, or Clinton in 1992, had promised to appoint a new Iran-Contra independent counsel to investigate Vice President/President Bush’s involvement?
I’m not sure that any or all of these promises would have been so problematic. Nor am I sure how those hypothetical promises are so different from Trump’s. Perhaps Trump’s basis for appointing a special prosecutor is much flimsier than the basis to appoint in these hypotheticals, but Director Comey has more or less acknowledged that Clinton’s handling of classified information was criminally negligent; the only basis he’s given for not recommending prosecution on a negligence theory is that DOJ historically just hasn’t brought negligence prosecutions, notwithstanding that the statute criminalizes negligence. He’s also acknowledged that Clinton intentionally talked about matters that were classified, and that she at least should have known were classified, on a private server, which she knew to be a private server; how one doesn’t get at least general intent out of that, I’m not sure. Usually under federal criminal law, when it’s a crime to do something with some legally defined thing, like a “machine gun” in Staples v. United States, or an “analogue drug” in McFadden or classified information here, one doesn’t have to know one’s dealing with that legally defined thing; one just has to be aware of the characteristics of the thing that cause it to fall within the relevant definition. A better distinction may be that Clinton’s conduct has already been the subject of an investigation, whose findings we have no reason to doubt, though lately some questions have come up about the immunity deals and side agreements with Clinton’s lawyers.
Posted by: Asher Steinberg | Oct 14, 2016 11:36:49 AM