Here was some breaking news this morning…
“I think when the president-elect who’s also the head of your party … tells you before he’s even inaugurated he doesn’t wish to pursue these charges, it sends a very strong message, tone and content, to the members,” Kellyanne Conway told the hosts of MSNBC’s “Morning Joe,” who first reported that the president-elect would not pursue his campaign pledge to “lock up” Clinton, his Democratic opponent.
“Look, I think, he’s thinking of many different things as he prepares to become the president of the United States, and things that sound like the campaign are not among them,” Conway, who is now on the Trump transition team, said in her interview.
She continued: “I think Hillary Clinton still has to face the fact that a majority of Americans don’t find her to be honest or trustworthy, but if Donald Trump can help her heal, then perhaps that’s a good thing.”
Let’s remember something about this – which is that normal procedure in law enforcement is NOT that the President of the United States decides who gets prosecuted and who doesn’t.
Normal procedure is that such a decision is made by regular Americans who serve on a grand jury. Yes, a prosecutor could commence an indictment via a bill of information, but in a case with such a high-profile defendant the intelligent way to proceed is to go through a grand jury. Grand juries are usually pretty friendly to the idea of indicting someone, but there still has to be enough evidence of wrongdoing to convince them that a conviction could be had.
We’ve become used to the idea that the White House pulls strings at the Justice Department such that it’s the President and his people who are determining who gets prosecuted and who doesn’t, but that isn’t how a properly-functioning DOJ works.
So to square this circle, it is absolutely in Trump’s political interest to downplay the idea that he will prosecute Hillary Clinton over the Clinton Foundation or her e-mails. For a number of reasons.
First off, the Trump White House wouldn’t and shouldn’t have anything to do with such a prosecution. Trump and his Attorney General designate Jeff Sessions will need to replace a large number of people within the Justice Department and particularly the 93 U.S. Attorneys across the country.
And once Trump puts his people in those offices, he shouldn’t be involved at all in what they do.
So if the FBI continues its investigation into the Clinton Foundation and brings the new U.S. Attorney for the Eastern District of New York, which is the office overseeing that investigation, suitable evidence to take to a grand jury, then a grand jury will be empaneled and an indictment could follow. Trump would be guilty of nothing more than getting out of the way and letting the judicial process decide what consequences to Hillary might result. Ditto for the DOJ’s Southern District of New York office which has the Clinton e-mail investigation which current Attorney General Loretta Lynch has been stomping on.
It might be Trump-appointed U.S. Attorneys giving the press conferences about indictments in those cases, but it would be career law enforcement professionals handling them. And Trump would have nothing to do with pushing indictments.
Secondly, Trump has nothing to gain politically by continuing any “Lock Her Up!” campaign rhetoric, particularly if his intention is to let the judicial process work where Hillary is concerned. In fact, he would be poisoning the judicial process by continuing to press such rhetoric, and he’d be politicizing an indictment. All of which is an exceptionally bad idea, and he gains nothing by it.
Thirdly, it’s still entirely possible that Hillary will catch a pardon from President Obama before Trump even takes office – and if Trump pushes “Lock Her Up!” in advance of such a pardon, it will look like a political defeat for Trump if it comes. He can’t control what Obama will do with that decision, so it makes no sense for him to have a stake in it.
Fourthly, to the extent Trump can forebear a prosecution of Hillary so that she can “heal” from her presidential loss, Trump has a tacit quid pro quo on offer to Hillary – namely, that she’s going to be a very docile and unassuming former presidential candidate and not a bomb-throwing sore loser encouraging rioters and rude stage actors across the fruited plain. Because if Hillary were to attempt to re-enter the political scene then obviously she hasn’t “healed” and in such a case those investigations get ramped up very quickly.
There are some statute-of-limitations problems with such a strategy, though, and therefore it might be discounted.
The point is, don’t just take Conway’s word that Hillary’s legal problems are all gone. They aren’t. Trump just isn’t going to put prosecuting Hillary up in lights on a marquee as the leading piece of his agenda.