Donald Trump’s threat to put Hillary Clinton “in jail” and appoint a special prosecutor to investigate her private email server if he becomes president was one of the harshest lines in presidential debate history.
But it’s also vastly oversimplified and potentially illegal. Since Watergate, presidents do not have the power to appoint special prosecutors or independent counsels.
Only attorney generals and Congress can appoint independent counsels to investigate current public officials. Government taxpayer-funded special prosecutors also are not usually used to launch investigations against former public officials — no matter how egregious the accusations against them are.
Early on in Sunday night’s tense presidential debate in St. Louis, Trump threated to appoint a “special prosecutor” to investigate Clinton’s use of a private email serve while secretary of state. Clinton quickly responded that it’s a good thing that Trump isn’t in charge of making or enforcing the country’s laws — to which Trump fired back, “you’d be in jail.”
Presidents, of course, have the responsibility of nominating attorney generals and usually choose those prosecutors with a track record of interpreting the law and prioritizing cases in line with their own political beliefs and priorities.
But once in office, attorney generals are supposed to exercise independence free of presidential influence and political meddling.
Obama’s former attorney general, Eric Holder, took to Twitter to accuse Trump of “Nixonian” behavior by pledging to put Clinton in jail if he won the presidency.
“So @realDonaldTrump will ORDER his AG to take certain actions-When Nixon tried that his AG courageously resigned. Trump is dangerous/unfit,” Holder tweeted during Sunday night’s debate.
If Trump won the Oval Office and his attorney general were to appoint an independent prosecutor to investigate Clinton, the attorney general would have to take pains to justify the decision and try to prove that it was unsullied by politics and interference from Trump — a little difficult to do considering that the GOP nominee just laid out his intention in a nationally televised debate.
The only recourse a President Trump would have if his choice for attorney general failed to name an independent prosecutor to investigate Hillary Clinton would be to say, “You’re fired.”
Presidents have the power to fire the attorney general, as well as U.S. attorneys the president also appoints, if they are not prioritizing enforcement of the law in line with the executive agenda.
In fact, in the aftermath of Watergate, President Carter tried to direct his attorney general, Griffin Bell, to write legislation that would make the attorney general an appointed post for a definite term, only subject to removal for cause, according to Douglas Kmiec, a constitutional law professor at Pepperdine University who served as assistant attorney general from 1985 to 1989.
Carter was trying to insulate the attorney general from presidential influence and direction after President Richard Nixon was accused of corruptly using the Justice Department to serve his own political purposes.
Bell, however, refused, according to Kmiec. “Any law that restricted the president’s power to remove the attorney general — and, by inference, to fire any U.S. attorney — would likely be found unconstitutional,” Kmiec wrote in a piece in the Los Angeles Times amid the uproar over President Bush’s firing of several of his U.S. attorneys in 2007.
“The president, Bell reasoned … must be free to establish policy and define priorities, even in the legal arena,” Kmiec pointed out.
“Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations,” Bell wrote in a memo to Carter in 1977.
Nixon appointed the country’s first special prosecutor, Archibald Cox, to investigate the Watergate scandal in 1973 because there was no law to regulate the appointment of special prosecutors at the time.
When Cox tried to force Nixon to turn over tap recordings he made of White House conversations, Nixon simply claimed executive privilege and ordered his attorney general, Elliot Richardson to fire him. When Richardson refused, Nixon fired him, then turned to his deputy, William Ruckelshaus, who also refused to fire Cox before Nixon fired him too.
In the end, Robert Bork, the solicitor general and third highest-ranking official, fired Cox. But a new special prosecutor, Leon Jaworski, also engaged in a tug of war with Nixon over the tapes’ release, and ultimately Nixon himself was forced to resign after the Supreme Court ruled in Jaworski’s favor.
In the wake of Watergate, Congress passed a the Ethics in Government Act of 1978, which took the appointment of a special prosecutor out of the hands of the president and gave it to the attorney general and Congress.
