Peter T. Elikann, BridgeTower Media Newswires
It is not unprecedented in totalitarian police states and dictatorships that, after an election is held, the losing candidate is jailed or even executed.
Merely declaring one’s candidacy resulted in the arrest of candidates in a plethora of third world countries in 2016 alone. In Uganda, incumbent President Yoweri Museveni had opposition candidates Kizza Besigye and John Amama Mbabazi arrested on Election Day. A Congolese court sentenced presidential contender Moise Katumbi to three years in jail.
Yet the presidential debate on Oct. 9 marked an unparalleled plunge into untraveled territory as the first time in American history that a major party presidential candidate officially stated that, if he won, he would see to the jailing of the losing opposition candidate.
This was the exchange:
DONALD TRUMP: I’ll tell you what. I didn’t think I’d say this, and I’m going to say it, and hate to say it: If I win, I’m going to instruct the attorney general to get a special prosecutor to look into your situation because there’s never been so many lies, so much deception. … A very expensive process, so we’re going to get a special prosecutor because people have been, their lives have been destroyed for doing one-fifth of what you’ve done. And it’s a disgrace, and honestly, you ought to be ashamed.
HILLARY CLINTON: Let me just talk about emails, because everything he just said is absolutely false. But I’m not surprised. … It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law of our country.
TRUMP: Because you’d be in jail.
That declaration, in essence, would advocate the end, as we know it, of democracy and a free election, which is the cornerstone of our American experiment. This is not a Republican versus Democrat or conservative versus liberal consideration. It is an attack on the rule of law itself, showing disregard for the U.S. Constitution and its limits on the presidency.
The view that the U.S. Department of Justice might serve at the arbitrary discretion of a president is dichotomous to the Constitution.
First of all, presidents do not decide whom to prosecute for crimes. In fact, under law, we aren’t supposed to investigate and prosecute individuals; we investigate and prosecute crimes. It would be unlawful for a president to direct a prosecutor to investigate a particular individual, though the president might, in a general way, call for efforts to combat certain offenses such as to conduct a legal offensive on terrorism or drugs.
Yet once the president appoints an attorney general, the president must then step back and let the DOJ do its work independently. The alternative would be to use the department as a political tool, operating at the whim of the president’s political motivations. That would be antithetical to the core fundamental American principle that politics should never be a factor in arriving at decisions on whether to charge in court.
The only instance remotely similar in receding memory that precipitated a constitutional crisis was the now-storied “Saturday Night Massacre” in 1973 when Richard Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor investigating the Watergate crimes. Richardson and then-Deputy Attorney General William Ruckelshaus refused and, in a declaration of conscience, resigned. Federal Judge Gerhard Gesell later ruled the president’s firing of the prosecutor illegal, and the act so struck both Congress and the public as a gross abuse of presidential power that it became a critical turning point in the subsequent impeachment proceedings and eventual resignation of the president.
Yet, in this instance, Trump’s promised command goes beyond the proposed inappropriate ordering by a president of the prosecution of an individual. Here, he has already predetermined the outcome of such an investigation and a subsequent prosecution by his simple declaration that, if he wins the office, “You’d be in jail.”
Even a prosecutor, who is correctly tasked with the duty of a fair and impartial investigation in the interest of justice cannot fairly under law put the cart before the horse and announce the result of an investigation before the investigation in fact commences. Due process would be nonexistent. Prosecutors aren’t assigned with the initial goal of putting someone in jail. They are obligated to do the actual investigation first.
Otherwise, the suggestion of locking up losing political opponents on American soil constitutes a lack of understanding of the legal system and that the DOJ is not the capricious plaything of an autocrat who might reserve the potential capacity to use it as a tool of self-serving spite or malice. To do so would be to advocate running roughshod and laying waste to our Constitution — the engine at the very heart of what constitutes the American experiment — and a country governed by democratic principles and the rule of law where free elections are cherished and citizens may run for office without fear of punishment for the mere exercise of that right.
—————
Peter T. Elikann is a criminal defense attorney in Charlestown, Massachusetts.
