In the second debate, Trump’s promise to to imprison Clinton if he wins, perhaps more than any other exchange during the debate, has excited comment and condemnation among the media and blogs (or at least the few that I read). Benjamin Wittes on Lawfare, a practicing lawyer and expert in international law, examines the implications from a legal & norms perspective – and it’s not encouraging:
Yet Trump’s comments induced horror among many commentators—and rightly so. The reason? His promise tramples on a number of cherished norms in the relationship between the Justice Department and the White House and in the conduct of the Justice Department itself. These norms restrict presidential and departmental behavior far more than the bare bones strictures of the Constitution. They are part of our constitutional fabric and rooted in important constitutional values. But our mode of enforcing them is not legal. It is political. It is a matter of our deepest expectations of the presidency and the Justice Department.
One of these norms is that the Justice Department doesn’t use the criminal enforcement powers of the federal government to go after the administration’s political opponents. This is the idea of impartial justice. But don’t kid yourself. The Constitution does not require impartial justice. The president has enormous discretion—which, put more crudely, means that we expect him to discriminate. One possible basis for this discrimination is how much he likes or dislikes you. Most people have committed crimes if you look hard enough to find them. What prevents administrations from focusing on the crimes of their opponents, rather than the most serious crimes committed by whomever, is nothing more than the institutional expectations we have of the executive branch—and it has of itself. These expectations sound less in law than they do in decency and civic virtue. What Trump is promising here is precisely war on that decency and civic virtue. …
Another norm Trump’s promises assault is the notion that while the Justice Department is part of the administration and the President is thus entitled to set policy priorities for it, the White House does not involve itself in or direct specific law enforcement operations or decisions. People don’t believe this, but it really is true; it’s a norm that guides the Justice Department across administrations of both parties. The President rightly decides whether drug enforcement or terrorism or child pornography or guns or financial crimes are enforcement priorities on which he thinks it important to focus. But when it comes to investigating or indicting someone, the White House generally makes a point of not getting involved—even in the highest-stakes cases.
This is a really good piece that illuminates some of the structure of government that most of us know nothing of.
Now, can you imagine Trump winning? Surviving impeachment proceedings for four years and then running again – and proceeding to subject to investigation and possible imprisonment his strongest political opponents – even possibly within the GOP? One might argue that his interest might be depleted before he even reaches the end of his first term, but once he achieves the Presidency, there’s still the question of who was the best President ever.
And that argument is really specious. For 200+ years we’ve never gone down this rabbit hole, a hole that we’ve seen destroy the entire political systems of other nations. One of our oldest slogans is “We’d better hang together or we’ll all hang apart”, and a President Trump, by attacking his enemies with the strongest tools at his disposal, something we’ve never done, would drive us apart. (See this post on the GOP’s future for more on the politics of division.) This is just as important as his attitude towards women.
Is it any surprise the GOP establishment is abandoning him? The real surprise is that the base, the everyday Americans who think he’s cool, haven’t finally started leaving him as well. His avid lust for power should be repulsive, and his numbers should be falling precipitously.
And perhaps they will in the next few days.
