Trump would jail Clin­ton?

There's a name for that

The Myanmar Times - - Front Page - NOAH FELD­MAN news­room@mm­

DON­ALD Trump’s threat in last week­end’s pres­i­den­tial de­bate to ap­point a spe­cial prose­cu­tor to go after Hil­lary Clin­ton’s use of a pri­vate email server is legally empty – but it’s gen­uinely dan­ger­ous nev­er­the­less. Fed­eral reg­u­la­tions give the ap­point­ment power to the at­tor­ney gen­eral, not the pres­i­dent, pre­cisely to pro­tect us against a pres­i­dent who uses the spe­cial prose­cu­tor as a po­lit­i­cal tool.

What sep­a­rates func­tion­ing democ­ra­cies from weak or failed ones is that po­lit­i­cal par­ties al­ter­nate in power with­out jail­ing the op­po­nents they beat in elec­tions. That some­times means giv­ing a pass to po­ten­tially crim­i­nal con­duct, but that’s a worth­while sac­ri­fice for mak­ing repub­li­can gov­ern­ment work.

The law it­self has a telling his­tory. After US Pres­i­dent Richard Nixon fired spe­cial prose­cu­tor Archibald Cox in the “Satur­day night mas­sacre”, a Demo­cratic Congress passed the Ethics in Gov­ern­ment Act of 1978, which cre­ated an in­de­pen­dent coun­sel who was ap­pointed by a spe­cial ju­di­cial panel, not the pres­i­dent. The law was up­held by the US Supreme Court in 1988 over the dis­sent of Jus­tice An­tonin Scalia – the only jus­tice who said the ex­ec­u­tive was the only branch of gov­ern­ment with the ca­pac­ity of ini­ti­at­ing a crim­i­nal in­ves­ti­ga­tion.

But the law ex­pired in 1999. And it was never re­newed, in large part be­cause of the per­cep­tion that Ken­neth Starr had gone too far as an in­de­pen­dent prose­cu­tor in go­ing after Pres­i­dent Bill Clin­ton.

After the in­de­pen­dent coun­sel law lapsed, the Depart­ment of Jus­tice adopted a for­mal reg­u­la­tion gov­ern­ing the ap­point­ment of spe­cial coun­sels that is still in ef­fect. The reg­u­la­tion says that the at­tor­ney gen­eral – not the pres­i­dent – has the le­gal author­ity to ap­point a spe­cial prose­cu­tor.

Sev­eral con­di­tions ap­ply. First, the at­tor­ney gen­eral must de­ter­mine that a crim­i­nal in­ves­ti­ga­tion is war­ranted – a pres­i­den­tial di­rec­tive isn’t enough. Sec­ond, an or­di­nary in­ves­ti­ga­tion must “present a con­flict of in­ter­est” such that “it would be in the pub­lic in­ter­est” to ap­point a spe­cial coun­sel.

The point of these re­stric­tions is sim­ple: to pre­vent a pres­i­dent from us­ing the spe­cial prose­cu­tor’s of­fice as a tool to go after po­lit­i­cal op­po­nents.

That mat­ters for a func­tion­ing democ­racy. As po­lit­i­cal sci­en­tists have long ob­served, democ­racy depends most ba­si­cally on po­lit­i­cal al­ter­na­tion: When par­ties change places after an elec­tion, the win­ners al­low the losers to stay in busi­ness, op­er­ate as an op­po­si­tion and run for of­fice again.

That al­ter­na­tion means win­ners don’t put their op­po­nents in jail. If they do – or if the op­po­nents fear that they will be jailed – then the in­cen­tive to ac­cept de­feat evap­o­rates. Losers in that dire po­si­tion in­stead will turn to wide-scale pop­u­lar re­sis­tance or mil­i­tary coups. That is only ra­tio­nal if the losers think they won’t be free to run for of­fice again.

Al­ter­na­tion is thus what dis­tin­guishes sta­ble democ­ra­cies from weak or fail­ing ones. Pros­e­cut­ing op­po­nents is the hall­mark of democ­ra­cyend­ing dic­ta­tor­ship. Egypt offers a re­cent and clear ex­am­ple: Ab­del-Fat­tah El-Sissi has re­lent­lessly pros­e­cuted the elected lead­ers he dis­placed in his 2013 coup. No one has any il­lu­sion that the Mus­lim Brother­hood will be back in fu­ture elec­tions. And no one doubts that democ­racy in Egypt is over.

It may seem ex­treme to say that Mr Trump’s prom­ise to pros­e­cute Ms Clin­ton threat­ens al­ter­na­tion in the US. After all, Amer­i­can democ­racy is pretty sta­ble. But other pres­i­dents have bent over back­ward to avoid such prose­cu­tions – even to the point of con­don­ing il­le­gal be­hav­iour.

Ger­ald Ford’s par­don of Mr Nixon is a prime ex­am­ple, even though the two were from the same party. Mr Ford judged that the repub­lic would not be well-served by pros­e­cu­tion of a for­mer pres­i­dent. Ge­orge W Bush did not seek to pros­e­cute Bill Clin­ton for per­jury, although legally he might have been able to do so.

And Barack Obama didn’t seek to pros­e­cute Bush ad­min­is­tra­tion of­fi­cials for acts that likely counted as tor­ture.

In each in­stance, there were other po­lit­i­cal rea­sons to avoid pros­e­cu­tion. But the dom­i­nant ra­tio­nale was surely that each pres­i­dent wanted to avoid the spec­tre of us­ing ex­ec­u­tive of­fice to go after op­po­nents or for­mer pres­i­dents.

This shows that even in the US, the value of demo­cratic al­ter­na­tion weighs very heav­ily – more heav­ily than crim­i­nal jus­tice. Mr Trump’s threat to jail Ms Clin­ton shows he doesn’t value that tra­di­tion of al­ter­na­tion. Even if he’s not elected, that’s a dan­ger­ous view. – Bloomberg

Pros­e­cut­ing op­po­nents is the hall­mark of democ­racy-end­ing dic­ta­tor­ship. Egypt offers a re­cent and clear ex­am­ple.

Photo: AFP

Repub­li­can pres­i­den­tial nominee Don­ald Trump par­tic­i­pates in the town hall de­bate at Wash­ing­ton Univer­sity in St Louis, Mis­souri, on Oc­to­ber 9.

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