GOP ex-prosecutors slam Trump over threat to 'jail' Clinton 'The Justice Department isn't a political tool and it ought not to be employed that way.'

Donald Trump’s debate-night vow to appoint a special prosecutor to investigate Hillary Clinton’s email setup and put her “in jail” provoked a sharp blowback from former U.S. prosecutors, who said Trump’s view of the Justice Department serving the whims of the president is antithetical to the American system.

While presidents appoint the attorney general, they do not make decisions on whom to prosecute for crimes — and were Trump to do so, prosecutors warned, he would spark a constitutional crisis similar to that of the “Saturday Night Massacre” in the Nixon administration. In that case, Nixon attempted to fire the prosecutor investigating the Watergate scandal, and the top two Justice Department officials resigned on the spot.


At a Trump rally outside Pittsburgh Monday afternoon, the crowd erupted in chants of "Lock her up! Lock her up!" That prompted the the GOP nominee to repeat his pledge to name a special investigator to probe Clinton. "Special prosecutor, here we come, right? If I win, we're going to appoint a special prosecutor," Trump declared.

However, former Republican appointees to senior Justice Department posts used words like “abhorrent,” “absurd” and “terrifying” to describe Trump’s threat to use the legal system to imprison Clinton.

“For Donald Trump to say he will have a special prosecutor appointed and to have tried and convicted her already and say she’d go to jail is wholly inappropriate and the kind of talk more befitting a Third World country than it is our democracy,” said Paul Charlton, who spent a decade as a federal prosecutor before serving as U.S. attorney for Arizona under President George W. Bush.

Added Charlton: “The Department of Justice isn’t a political tool and it ought not to be employed that way.”

Another GOP lawyer, Marc Jimenez, who served on the legal team backing Bush in the Bush v. Gore Supreme Court showdown and later as a Bush-appointed U.S. attorney in Miami, said he was deeply disturbed by Trump’s remarks.

“This statement demonstrates the clear and present danger that Trump presents to our justice system. For a president to ‘instruct’ an attorney general to commence any prosecution or take any particular action is abhorrent,” Jimenez said. “If it occurred, it would be a politically motivated decision that would cheapen the Department of Justice and contradict the core principle that prosecutors should never consider political factors in their charging or other decisions.”

A former federal prosecutor who worked on separate cases involving Clinton’s 2000 Senate campaign and Bush’s White House also denounced Trump’s comments.

“A special prosecutor is supposed to investigate and isn’t appointed to put people in jail. You’re kind of skipping over an important step there,” said Peter Zeidenberg, now with law firm Arent Fox. “Can you imagine being the defendant prosecuted after being told the prosecutor was someone who was appointed to put you in jail, that had already foreordained that result? ... It’s absurd and, if it were serious, it would be absolutely terrifying because it suggests there’s no due process.”

Former Justice Department officials said the White House can properly direct prosecutors to focus on certain kinds of crimes, like environmental offenses, terrorism or obscenity, depending on the priorities of a specific president or his aides. But they said that it’s never appropriate for a president to direct Justice to investigate specific individuals.

Prosecutors said it would be a violation of legal ethics for an attorney general to accept such a direction, although they said it was less clear whether it would be outright illegal.

“It would be, at the very least, unethical, and it may be a violation of law,” Charlton said. He also said anyone prosecuted in such a situation would have a strong argument that his or her constitutional rights to due process had been violated.

Former Obama administration Attorney General Eric Holder also joined in the chorus of criticism of Trump over the debate remarks.

“Be afraid of any candidate who says he will order DOJ/FBI to act on his command. This is dangerous/so is @realDonaldTrump — he's not qualified,” Holder wrote. “In the USA we do not threaten to jail political opponents.@realDonaldTrump said he would. He is promising to abuse the power of the office.”

During the Sunday night debate, Trump said that, if elected, he would ordered his attorney general to name a prosecutor to probe Clinton.

“If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation,” Trump said to Clinton in one heated exchanged. “Because there has never been so many lies, so much deception. There has never been anything like it. And we’re gonna have a special prosecutor.”

Later, Trump said Clinton would have good reason to fear a Trump presidency “because you’d be in jail.”

Experts said they couldn’t point to any similar instances in recent history where the White House appeared to direct the Justice Department to name a prosecutor to go after a specific individual. However, many said it was akin to the Saturday Night Massacre, Nixon's messy October 1973 firing of the special prosecutor probing Watergate, Archibald Cox.

Nixon ordered Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus to get rid of Cox. Both Richardson and Ruckelshaus refused and resigned. Cox was finally fired by Solicitor General Robert Bork after he was bumped up to acting attorney general.

Charlton also compared the situation to the dismissal of one of his fellow U.S. attorneys in the Bush administration, David Iglesias. He came under pressure from Sen. Pete Dominici (R-N.M.) to seek indictments in a case focused on Democrats. No prosecution was filed in the case, but Iglesias was forced out of his post.

A Justice Department inspector general investigation found that “the complaints from New Mexico Republican politicians and party activists about Iglesias’s handling of voter fraud and corruption cases were the reasons for his removal as U.S. Attorney.”

As Trump’s remarks drew criticism, his camp issued divergent messages about how serious the nominee was. Trump campaign manager Kellyanne Conway dismissed the “jail” comment as “a quip.”

However, when GOP vice presidential nominee Mike Pence was asked about Trump’s remarks on both appointing the prosecutor and jailing Clinton, the Indiana governor called them one of the highlights of the debate.

“I thought that was one of the better moments of the debate,” Pence said. “I’m old enough to remember a day when a president of the United States erased 18½ minutes and they ran him out of town. She used high technology to erase 33,000 emails. ...[She] really hasn’t been held to account for that. What Donald Trump said is no one is above the law.”

Pence added that Trump would ensure “an even application of the law.”

When Trump spoke Monday in Pennsylvania, he clearly reiterated the special prosecutor pledge, but did not explicitly call for Clinton to be jailed. However, he did look on approvingly, smiling and pointing as his speech was interrupted with the chants about putting the Democratic nominee behind bars.

Many Republicans have claimed that politics infected the FBI and Justice Department investigation into Clinton’s email setup and the decision not to prosecute her or anyone else. They contend that agents and prosecutors were overly deferential to Clinton and her lawyers and granted immunity to so many witnesses that the case became all but impossible to pursue. FBI Director James Comey has insisted that politics did not affect the probe and that Clinton was treated the same as anyone else who comes under investigation for allegedly mishandling classified information.

Many lawyers said Trump’s comments about effectively forcing appointment of a special prosecutor indicated a lack of understanding of the legal system. They also noted that, in an interview earlier this year, Trump suggested that he would appoint Supreme Court justices who viewed Clinton’s private email arrangement as a serious breach. It was unclear whether Trump was suggesting the justices would investigate Clinton’s case or that it would somehow reach them, an outcome that seems exceedingly unlikely because of the nature of the cases the high court takes.

“I’d probably appoint people that would look very seriously at her email disaster because it’s a criminal activity, and I would appoint people that would look very seriously at that to start off with,” he told ABC in March.

Charlton said he’s a Republican but he can’t back Trump due to those sorts of comments. “I’m a Republican, but his race has been replete with just these kinds of misunderstandings,” said the ex-prosecutor, now at law firm Steptoe & Johnson. “I haven’t done an endorsement for Clinton, but I’m not voting for Donald Trump because I can’t in good conscience do it.”

Zeidenberg, who helped lead an ultimately unsuccessful campaign-finance prosecution of David Rosen, the national finance director of Clinton 2000, and later served on the team of Special Counsel Patrick Fitzgerald that convicted Scooter Libby, Vice President Dick Cheney’s chief of staff, for false statements in the CIA leak case, said Trump’s remarks are difficult to take seriously.

“There's literally hundreds of statements like these that he’s made,” the ex-prosecutor said. “Does it make more or less sense than the Muslim ban? ... He’s not a serious person. I think the guy’s a buffoon.”