The Justice Department occupies a very delicate place our constitutional system. On the one hand, the attorney general serves at the pleasure of the president, who can fire his AG any time, for any reason or for no reason at all, which (as Justice Scalia explained) ensures that the people remain a check against prosecutorial excess. On the other hand, the president’s control of the Justice Department is tenable only because a president generally restrains himself from politicizing the it—let alone weaponizing it against his enemies.
So when Donald Trump announced in Sunday night’s debate that he would deploy the Justice Department to pursue Hillary Clinton, he disgusted even many of Clinton’s critics (myself included). Even if she broke the law, and even if FBI Director James Comey went too far in shielding her and her colleagues from prosecution, their wrongdoings do not justify a presidential candidate campaigning on a promise to “lock her up” (as his fans often chant). The risks of turning the Justice Department and the federal criminal justice system into just another political weapon are far, far too great.
We should be disconcerted by a presidential candidate who tells his opponent he’d send a “special prosecutor” after her. And when he adds, with relish, “because you’d be in jail,” we should see him for what he really is.
Of course, Donald Trump and his most feverish supporters are not the only ones who relish the thought of jailing their political opponents.
As I observed here three months ago, this baleful instinct has become an all-too-common feature of modern politics. And not just among Clinton’s critics. During the George W. Bush administration, many Democrats salivated at the notion of jailing Karl Rove, Scooter Libby, or other Bush administration officials. Today, liberals gleefully buy tickets to an off-Broadway show about putting George W. Bush, Dick Cheney, and Donald Rumsfeld on trial in the Hague for “war crimes.” Meanwhile, in Wisconsin, progressive district attorneys hellbent on blocking Governor Scott Walker’s reforms used the state’s own special-prosecutor law to raid the homes and offices of their political opponents, reaching truly Orwellian levels of prosecutorial depravity—until the state’s supreme court finally shut the prosecutor down, calling him “the instigator of a ‘perfect storm’ of wrongs.”
But even setting aside progressives’ baleful history on these points, the greatest irony of Sunday night’s controversy is this: while Democrats criticize candidate Trump for politicizing the Justice Department, their own 2016 platform expressly endorses using the Justice Department to silence political opponents. Specifically, they call upon the DOJ to pursue corporations that dissent from the party line on climate change:
It is one thing to pursue a climate change policy, and to urge corporations join them. But, dissatisfied with this, Democrats would rather just send federal prosecutors after corporations, to prosecute them for “fraud” for disputing—or even just failing to parrot—Democrats’ preferred view of climate science and policy.
Moreover, this platform plank simply reflected similar efforts at the state level, where attorneys general spent much of the year attempting to use their offices to bully climate dissenters. Fortunately, their plot largely unraveled, but not before Republican state AGs pointed out that politicized law enforcement can cut both ways.
And that is precisely the point. Whatever one thinks of Hillary Clinton, or ExxonMobil, or Scooter Libby, or Scott Walker, we all must avoid the temptation to turn the Justice Department’s prosecutorial powers into a tool for tormenting and silencing our political opponents.
Update: A friend reminds that, during the 2008 campaign, Senator Obama pledged to “have my Justice Department and my Attorney General immediately review” whether “high officials” in the Bush administration broke federal law by authorizing the policy for interrogating terrorist detainees. While Obama said that he was interested in “genuine crimes as opposed to really bad policies,” his suggestion about pursuing Bush administration officials no doubt endeared him to his election-year base—which is why the eventual decision not to prosecute anyone disappointed everyone from Harper’s (“prosecut[e] an outlaw administration”) to the New York Times (“any credible investigation should include former Vice President Dick Cheney; Mr. Cheney’s chief of staff, David Addington; the former C.I.A. director George Tenet; and John Yoo and Jay Bybee, the Office of Legal Counsel lawyers”).
Adam J. White is a research fellow at the Hoover Institution.
