During the presidential campaign, one of Donald Trump’s most striking promises was his vow to investigate, prosecute, and imprison his opponent, Hillary Clinton, for non-existent crimes. The Republican’s intentions were unlike anything in the American tradition, and reinforced fears about Trump’s undemocratic, authoritarian instincts.Soon after the election, CBS News’ Lesley Stahl asked Trump, Are you going to ask for a special prosecutor to investigate Hillary Clinton over her emails? And are you, as you had said to her face, going to try and put her in jail?” The president-elect said in response , “I’m going to think about it.”Well, evidently, he’s done thinking about it. The Washington Post reported this morning that Trump “has decided that his administration will not pursue criminal investigations related to former rival Hillary Clinton’s private email server or her family foundation.” We learned of the decision by way of Kellyanne Conway, who appeared on MSNBC earlier today.

I suspect much of the political world will perceive this as a conciliatory, and perhaps even magnanimous, decision, but before anyone gives Trump too much credit for being gracious towards his former foe, let’s set the record straight.First, there is no case against Hillary Clinton and there’s no credible evidence to suggest she should be prosecuted for anything. The Clinton Foundation broke no laws, and though voters were led to believe email-server management was the single most important issue facing the nation in 2016, clumsy I.T. practices are not a federal crime. To assume that Trump is prepared to give Clinton a pass for criminal wrongdoing is bonkers – because there’s no criminal wrongdoing to pursue.Second, the notion that Trump believes he has some personal discretion over who is and isn’t prosecuted is ridiculous. Presidents have considerable power, but it’s not up to the person in the Oval Office to dictate who’ll face criminal charges. That’s just not how the American justice system works.In other words, Trump is apparently inclined to scale back his campaign promises about Clinton’s incarceration, but to the extent that our legal process still matters, it’s not really up to him. The Justice Department is responsible for evaluating evidence and pursuing federal charges as appropriate. To think that it’s the president’s call is to misunderstand how the process is supposed to function.It was a scandal of sorts during the campaign that Trump saw himself as some kind of unhinged strongman, threatening to lock up those who stood in the way of his pursuit of power, in large part because he was claiming a legal authority that did not exist. Today’s news may seem reassuring – Trump won’t keep a ridiculous campaign promise – but look just below the surface and you’ll see that it’s actually a continuation of the scandal because Trump is still acting as if he has a power that remains imaginary.