With due respect, the estimable Charles Krauthammer is way off base in his weekly column, addressing Donald Trump’s “threat, if elected, to put Hillary Clinton in jail.” (The headline refers to this threat as a “promise,” but I don’t take that to be quite what Charles — or, for that matter, Trump — is saying.) I wrote about this topic right after Trump raised it in the second presidential debate, in response to Trump detractors who posited the claim that Krauthammer now advances: viz., Trump is criminalizing politics with threats to persecute political opponents. I generally agree with these detractors regarding the GOP nominee’s flaws and antics; on this, however, their comparisons of Trump to brutal dictators are so beyond the pale they make Trump seem tame.
Krauthammer is right that Trump has gone too far in his rhetoric. Yet, he overstates the case in suggesting that Trump is breaching important political boundaries. While he describes these as boundaries of “discourse” and “democratic decency,” Dr. K implies that they involve something even more fundamental, and thus that the breach is more perilous.
Mrs. Clinton appears to have committed serious crimes that undermined both national security and recordkeeping rules designed to promote accountability in government. If you want to talk about a truly profound threat to democratic norms, that’s the place to start. Obviously, these offenses are not just relevant but essential to the political case that should be made against Clinton, and would be by any opponent, not just by the unconventional, undisciplined Trump. Also pertinent is the fact that government officials who engage in Clinton’s type of misconduct do go to jail — to refrain from stating this would be to diminish the gravity of the crimes.
Moreover, even Krauthammer concedes that Clinton deserved to be prosecuted: “FBI director James Comey’s recommendation not to pursue charges was both troubling and puzzling.” Consequently, I don’t see why anyone, including Trump, should be faulted for asserting that there appears to be strong evidence that Mrs. Clinton has committed egregious offenses, which warrant prosecution and would call for imprisonment if she were convicted after a fair trial. Unless I am reading him wrong, that is Charles’s position on the matter — otherwise, why the dig at Comey?
Where Trump has overstepped is in his articulation of these points, not the fact that he is making them.
Political rhetoric inevitably involves a degree of exaggeration, and we must distinguish it from the realm of law-enforcement, in which officials are obliged to be circumspect. At the Republican convention, the most effective speech was New Jersey governor Chris Christie’s scathing indictment (in the rhetorical sense) of Mrs. Clinton’s misdeeds. It prompted the “lock her up!” chants that have punctuated Trump campaign appearances ever since. Now, when Americans say that someone ought to be “locked up” over this or that — which we say quite a lot — we are not urging an end run around the due-process protections that apply from investigation and indictment through trial and sentencing.
That goes without saying. During Obama’s 2008 campaign, his surrogate (and later his attorney general) Eric Holder called for a “reckoning” against Bush officials he depicted as guilty of war crimes and all manner of Constitution-shredding. I don’t think Mr. Holder was saying “jail now, trial later” — even if many on the left would have been delighted by such an arrangement.