Some of Trump’s rights-endangering campaign promises may pose a lesser danger because they are beyond a president’s power to implement. The president has no unilateral power to change libel laws, for example, nor any power to order local police to adopt unconstitutional stop-and-frisk tactics. But the president does have the power to initiate a criminal prosecution unless a hypothetical attorney general were to decline the instruction.
With Trump’s campaign in free fall for the past two weeks, the pledge appeared to be a rehearsed tactic to sharpen his attack on Clinton’s use of a private email server while secretary of state. “If I win,” he said when the issue came up during the 90-minute debate, “I am going to instruct my attorney general to look into your situation.”
Clinton counterattacked. “It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in this country,” she said. Trump interrupted to shoot back: “Because you’d be in jail.”
The threat by one major party presidential candidate to put his opponent in jail if elected has no exact historical precedent, though it recalls the shameful history of the Federalists’ use of the Sedition Act to jail their opponents in the 1790s. Trump’s handlers quickly tried to minimize the threat as “a joke,” according to spokesperson Kayleigh McEnany’s tweet that night, or “a quip,” according to campaign manager Kellyanne Conway the next morning.
It was surely not taken as a joke, however, by the many Trump supporters who have shown up at rallies wearing “Jail the bitch” T-shirts. Republican pollster Frank Luntz was quoted as saying that the comment registered as one of Trump’s best moments in the debate in the focus group he was monitoring. And Trump himself posted the exchange on Facebook the next morning, with no indication that he was less than serious.
Clinton has acknowledged her mistake in using a private email server while secretary of state, but the Republican-appointed, tenure-protected FBI director James Comey said the bureau’s investigation found no basis for prosecution. In a rule-of-law system, that ought to be enough, but not for Trump, who went on in last night’s debate to call his Democratic opponent a “liar” and “the Devil.”
For emerging democracies, it is often said that the real test is not the first election, but the second. The election must be free and fair and the result accepted as such by the public. Trump had already jeopardized that second condition by repeatedly warning about the supposed risk of voter fraud and a “rigged” election, with utterly no basis in fact. He invokes this danger to summon his supporters to serve as election monitors. True voting rights advocates see a real risk of harassment or intimidation of would-be voters by the Trump ballot-watchers in the Democratic-leaning precincts likely to be targeted.
As a private citizen, Trump has expressly used legal process as a tool of intimidation. He filed an unsuccessful libel suit against author Timothy O’Brien over his critical biography TrumpNation. In a post-mortem, Trump seemed to recognize that the suit was unlikely to succeed, but he congratulated himself for sticking O’Brien and his publisher with a big legal bill.
As a candidate, Trump has promised to “open up our libel laws” to permit suits when newspapers “write purposely negative and horrible and false articles.” With no federal libel law at present, Trump would need to ask Congress to write one. If one were enacted, it would have to pass muster with the Supreme Court. The court’s line of First Amendment decisions beginning with New York Times v. Sullivan in 1964 requires a public official or public figure a defamatory statement was published with knowledge that it was false or with reckless disregard as to its truth or falsity. None of the current Supreme Court justices has called for reconsidering those decisions.
As a candidate, Trump has also called for use of stop-and-frisk, citing the policies in New York City in the 1990s as an example. The Supreme Court’s line of decisions beginning with Terry v. Ohio in 1968 permit police to stop and “frisk” someone if the officer has a reasonable suspicion that the person is committing or is about to commit a crime or that the person is armed and dangerous. In a vigorously litigated case, a federal judge found that the city’s indiscriminate use of the tactic against racial minorities was unconstitutional. In the first presidential debate, Trump wrongly disputed the correct account of the ruling by the moderator, NBC’s Lester Holt.
Trump tosses blustery rhetoric around as if a presidential candidate’s policy pronouncements are no more than click-bait tweets. In the debate, Clinton repeated her line that anyone with Trump’s temperament should not be permitted to have his hands on the nuclear codes. In like vein, no one with Trump’s reckless disregard of the rule of law should have his hands on the Constitution.