Trump Demands the Prosecution of His Defeated Rival

The good news is President Trump is increasingly aware of important norms constraining presidential misbehavior. The bad news is that isn’t stopping him from transgressing them.

On Thursday, Trump appeared on Larry O’Connor’s radio show, where he complained about leaks and the Justice Department failing to prosecute Hillary Clinton:

But you know, the saddest thing is, because I am the president of the United States, I am not supposed to be involved with the Justice Department. I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing and I am very frustrated by it. I look at what’s happening with the Justice Department, why aren’t they going after Hillary Clinton with her emails and with her dossier, and the kind of money … I don’t know, is it possible that they paid $12.4 million for the dossier … which is total phony, fake, fraud, and how is it used? It’s very discouraging to me. I’ll be honest, I’m very unhappy with it, that the Justice Department isn’t going … maybe they are but you know as president, and I think you understand this, as a president you’re not supposed to be involved in that process.

Ben Wittes, in a moment of inexplicable optimism, wondered, “Could he be learning?” Spoiler alert: He was not learning, as a string of Friday-morning tweets showed:

Everybody is asking why the Justice Department (and FBI) isn't looking into all of the dishonesty going on with Crooked Hillary & the Dems..

— Donald J. Trump (@realDonaldTrump) November 3, 2017

Pocahontas just stated that the Democrats, lead by the legendary Crooked Hillary Clinton, rigged the Primaries! Lets go FBI & Justice Dept.

— Donald J. Trump (@realDonaldTrump) November 3, 2017

This is not how it works. You can’t say that you understand that you’re not supposed to interfere with the Justice Department and then turn around 16 hours later and tweet “Lets go FBI & Justice Dept [sic].”

For one thing, Trump has used his Twitter feed to announce orders before, as with his tweets announcing a ban on transgender service members. Those social-media missives hurt the government in court this week, when a judge cited them and stayed the order. Besides, Trump knows how powerful his Twitter feed is. Indeed, he tweeted about it in the same spree, referring to a brief outage last night when, according to Twitter, a rogue employee briefly took down Trump’s Twitter account. “I guess the word must finally be getting out-and having an impact,” the president tweeted. He knows full-well that the FBI and Justice Department will see what he tweets, and although it may not directly and immediately lead to a Clinton probe, having the president of the United States, your boss, instruct you to do specific things is bound to have an effect.

Trump calls the (blithely disregarded) norms against presidential interference in the Justice Department the “saddest part,” but they exist to protect against Nixon-like abuses. Trump has blown past them over and over again. Then-FBI Director James Comey says Trump pressured him to publicly clear Trump and to drop an investigation against Michael Flynn, leading Comey to plead with Attorney General Jeff Sessions not to leave him alone with Trump. Trump pressured Justice to lift a gag order on a confidential informant. In a break with protocol, he has personally met with candidates for U.S. attorney positions. He also asked Sessions if Justice could kill a prosecution of Sheriff Joe Arpaio, but the attorney general told him that would be inappropriate. (Trump waited until after Arpaio’s conviction, then pardoned him.) Even with Sessions’s pushback, this series of moves, and others like them, have gradually eroded the independence of the Justice Department.

That independence matters because without it, criminal prosecutions can become a tool for political vengeance, an authoritarian impulse. That is, of course, what Trump’s frequent calls for an investigation of Hillary Clinton look like. This has been true since at least the Republican National Convention, when chants of “lock her up” resembled the habit in non-democratic nations of new leaders persecuting their deposed predecessors.

This is clear in the way Trump discusses a Clinton prosecution in the newest tweets. He cites a blockbuster story by former interim Democratic National Committee Donna Brazile, which suggests some legitimate grievances by the Bernie Sanders campaign but does not clearly show illegal behavior. Trump adds, “What about the deleted E-mails, Uranium, Podesta, the Server, plus, plus...” The emails and server were investigated in 2016, in a very public FBI investigation, which produced an announcement that might have swung the election toward Trump, and for which Trump (ostensibly) fired Comey. The uranium story was fully vetted and largely debunked months ago. “Podesta” appears to refer to Tony Podesta, brother of Clinton campaign chair John; Tony Podesta is in trouble for being in business with, you guessed it, indicted former Trump campaign chairman Paul Manafort.

In other words, all of this looks a lot like Trump has decided that Clinton must be guilty of something, and he wants the Justice Department to go fishing for a reason to prosecute her. The problem for Trump is that Clinton’s sins seem to be largely political—and she has been punished for them by losing her election. But neither the FBI investigation of the emails and server, nor the years-long Whitewater investigation by a special prosecutor in the 1990s, ever turned up anything to indict her, much less to “lock her up.”

But Trump feels comfortable demanding a fishing expedition against Clinton both because he does not understand the norms against prosecuting political opponents per se, and because, despite the large and growing body of dubious behavior by aides, family members, and himself, Trump clearly views Special Counsel Robert Mueller’s investigation as a fishing expedition as well. Feeling unfairly targeted himself, he seems to feel no reservations about targeting someone else without evidence.

Does Trump really care whether Clinton is prosecuted? Probably not. During the campaign, he employed the threat of going after Clinton largely for politics. After the election, he said, “I don’t want to hurt the Clintons,” and admitted the idea no longer “plays well.” Now Trump and his aides are talking about the need to investigate Clinton as they seek a distraction from the Mueller probe, especially with the first indictments and guilty plea from former campaign aides this week. With the special counsel starting to move in on Trump, the president appears nervous. Even if he views the probe as a fishing expedition, that doesn’t mean it might not catch some fish.