Gregg Jarrett: Will Trump fulfill his vow to pursue a criminal case against Hillary?

If Hillary Clinton thought losing the presidency was a nightmare, it is nothing compared to what she could now face: a legal inferno that may be hard to extinguish.

Instead of living comfortably in the White House, Clinton must now confront the real and serious threat of living in smaller confines.  And I don’t mean Chappaqua.    

Once in office, President Donald Trump may feel compelled to fulfill his campaign promise to voters that his administration will pursue what he described as Clinton’s criminality.  He repeatedly vowed to prosecute Clinton and, if elected, to put her behind bars.


He said it to her face in the second debate, to which she responded, “It’s a good thing somebody like Trump is not in charge.”

Soon, he will be in charge.   And Clinton may find herself in jeopardy, staring in the mirror wondering what went wrong and whom to blame.

Promises, Promises…

In front of a television audience of 66 million Americans, Trump promised this:

 “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.  People have been, their lives have been destroyed for doing one-fifth of what you’ve done, and it’s a disgrace, and honestly, you ought to be ashamed.” 

Shame is the least of Clinton’s worries right now.  Indictment, conviction and incarceration seem more pressing.  

Will Trump make good on his pledge?  How could he not?  The debate aside, Trump made the term “crooked Hillary” a staple of his campaign rhetoric.  Amid raucous chants of “lock her up”, he assured his supporters that a special prosecutor would be appointed in a Trump administration.

That’s the trouble with campaign promises.  They’re like taxes, you’re stuck with them.  If you break your promise and reverse course, you’re accused of insincerity at best, lying at worst.  Ask Bush 41 about his infamous pledge, “read my lips: no new taxes”.  His subsequent flip-flop so angered his supporters that he lost re-election to a guy from Arkansas named Bill Clinton.

A Special Prosecutor

Can Trump instruct his attorney general to appoint a special prosecutor?  No.  Under the law, a president is not empowered to do so.  He does not have the legal authority to direct an Attorney General to do anything other than pass the chips and guacamole.

Professor Laurence Tribe of Harvard Law School dove off the deep end when he described Trump’s promise to have the Democratic nominee investigated criminally as “an impeachable offense”.  In an email to Fortune, Tribe claimed that “vows to use a nation’s criminal justice system against one’s vanquished political opponent… is incompatible with the survival of a stable constitutional republic”.  Say what?

By Tribe’s reasoning, any suspected criminal could run for president and then get a free pass.  Since when does running for office absolve you of criminal consequences?

If someone has committed serious crimes that compromise national security, that person is not entitled to the equivalent of immunity simply because he or she is a candidate for high office. The threat to the constitution reposes in a justice system that refuses to pursue politicians who break the law because some scholarly elites might regard it as “bad form”.  Trump may be guilty of politicizing a criminal investigation of Clinton, but that does not render a potential prosecution any less legitimate or sound in a court of law.

The New Attorney General

It matters not that Trump is prohibited by law from instructing his Attorney General to appoint a special prosecutor.  All he needs to do is select someone who shares his values or point of view.  Which is pretty much what most presidents do anyway.

It is no secret that Trump has been thinking about Rudy Giuliani as his pick to preside over the Department of Justice.  The former U.S. Attorney for the Southern District of New York has made his opinions on Clinton well known.  A month ago, he said he believed Clinton “acted intentionally and with criminal intent” in the mishandling of classified emails and the deletion of some 33,000 emails after receiving a subpoena from Congress.

Giuliani also issued a list of 15 federal felony statutes which he is convinced Clinton violated.  In one of his more animated moments, he referred to her as “the biggest criminal to run for the White House.”  Her indictment was “a no brainer”, he said.

Giuliani is hardly impartial.  But he doesn’t need to be.  He has the authority to appoint a neutral Special Prosecutor who would operate independently.  Assuming someone with a reputation for dispassion and integrity is chosen, a sense of fairness would lend credibility to the investigation and ultimate decision on whether to prosecute Clinton.

Clinton’s Only Hope      

The Democratic nominee may have gleaned a glimmer of hope that all is not lost when Trump delivered his victory speech upon winning the election.  He promised reconciliation and harmony. He spoke of healing the nation’s divisive wounds and unifying its people.

It will be hard to accomplish all of that if Trump is determined to fulfill his other promise to seek prosecution of Clinton.  Her supporters  --and there are many, judging by her nearly equal popular vote--  will declare war on Trump.  He’ll be branded as vindictive and petty, regardless of whether a Special Prosecutor is legally justified.  Democrats in Congress will do their best to obstruct.

In other words, adherence to one promise threatens the achievement of another.

A statesman might choose a gracious course.  Forgive and forget.  Let’s move on.  Clinton lost the presidency.  Like Nixon, perhaps that is enough punishment.

But Trump has shown little evidence that he can forgive his perceived enemies.  Or the slings and arrows of a heated campaign.  He has vowed to punish his female accusers, the media, his political opponents, the list goes on.

So, perhaps Clinton’s only real hope may rest in the hands of the man she hoped to succeed. President Obama could pardon Clinton. It would not absolve her, but it would end any and all investigations and future prosecutions.

But the ghost of Gerald Ford is a haunting reminder to presidents who consider political pardons.  Unlike Ford, Obama is not running for anything… so the risk is not as severe.  However, Obama seems to care deeply about his legacy. Why would he jeopardize that? For the good of the nation?

And if Trump’s pursuit of a criminal case against Clinton might sow the seeds of the new president’s destruction, why would Obama want to save Trump from himself?

Which brings us back to Hillary Clinton and the face in the mirror peering back at her.

In Search Of Blame

Losing out on the most powerful position in the world is probably a very hard thing.  But Clinton has only herself to blame.  She created her own mess.  Her bad decisions abound.

She deliberately chose to conduct all of her state department business exclusively on a private, unauthorized and unsecured email server housed in the basement of her home.  Why would she risk America’s national security with such a reckless decision?  Did she really think it could be kept hidden in perpetuity?  Perhaps she was driven by an obsession with secrecy.  Or maybe an abiding conviction that laws don’t apply to her.  You know… laws are for the little people.

She deliberately chose to maintain close ties to her foundation while serving as Secretary of State, accepting tens of millions of dollars from foreign donors who gained special access.  Why would she risk such an obvious conflict of interest?  Did she not realize that leveraging her charity for personal enrichment might raise the specter of corruption, bribery and fraud?  Perhaps she was seduced by greed.  Or a sense of privilege.  Or a mistaken belief that laws are meant to be bent and broken by someone who is clever.

What is baffling and inexplicable is that Clinton knew her actions would be under the public microscope.  Surely she was planning to run again for president in 2016.  Why would she jeopardize her dream by engaging in such inherently suspicious behavior?  Why would she give her critics so much ammunition to undermine her chances of succeeding?

In search of blame, Clinton may round up the usual suspects.  A vast right-wing conspiracy.  An intrusive media.  Overzealous FBI agents.  James Comey.  Russian hackers.  Wikileaks.  Obamacare.  ISIS.  The boogeyman.  She may even blame her husband for failing to stop her from her own worst instincts.  Who knows.

George Bernard Shaw observed, “People are always blaming their circumstances for what they are.  I don’t believe in circumstances.”

If Hillary Clinton ever pauses long enough for a true moment of honesty and introspection, she need only glance in the mirror in her search for blame.