“Lock her up!” was his supporters’ fervent cry.
But it’s Donald Trump who may find himself in political shackles, stuck between his followers’ yearning to put Hillary Clinton in jail and his expressed desire to unite a badly fractured country after an election in which he lost the popular vote.
The tension is not likely to dissipate anytime soon. After having pledged to appoint a special prosecutor to investigate Clinton, Trump faces a dilemma: He can either drop the matter and risk angering his supporters, or charge ahead with a criminal inquiry targeting his vanquished political foe, something never before done in U.S. history.
“It’s a tough decision,” former New York Mayor Rudolph W. Giuliani, a Trump advisor and a top choice to be the next attorney general, told CNN on Thursday. “I don’t know what the right answer to that is. It’s a tough one that ought to be given a lot of thought. ”
The answer, of course, rests with Trump. The president-elect may have signaled his intentions to forgo an investigation when he told supporters Wednesday morning during his victory address that the country owed Clinton “a major debt of gratitude for her service.”
That doesn’t sound like what you would say when you are about to seek a special prosecutor, according to legal experts and political consultants. Trump is surely cognizant, they said, of the immense political and legal hurdles of forging ahead.
In an interview with the Wall Street Journal published online Friday, Trump suggested he had higher priorities. “It’s not something I’ve given a lot of thought, because I want to solve healthcare, jobs, border control, tax reform,” he said.
It’s a tough decision.
A prosecution of Clinton for mishandling classified material on a private email server while secretary of State would certainly inflame Democrats and anger independent voters wishing for nothing more than to put the nightmare of the 2016 campaign behind them. It would also become campaign fodder in the 2018 midterm election and might distract from Trump’s efforts to build a wall on the border of Mexico and repeal the Affordable Care Act.
“Is there a backlash to him reopening this? There would be,” said Reed Galen, a Republican strategist. “This country is so highly divided along political lines. Are you really going to antagonize 160 million Americans for the purposes of making the other 160 million happy?”
“If I were advising him, and I am certainly not, I would tell him to take the [victory] speech he gave and allow the Clintons to fade into American political history,” Galen said.
Douglas Brinkley, a bestselling author and historian at Rice University, said appointing a special prosecutor would be unprecedented and draw comparisons to the well-known vindictive streak of President Nixon.
“Trump has to be careful not to seem Nixonian and develop his enemies list and destroy opponents,” Brinkley said. “I think he has his hands full with building a wall, and I’m not sure playing to the ‘lock her up’ motif gets him anywhere. It would just be very bad, a terrible precedent to start trying to jail your political opponent after an election.”
The problem of dropping such a promise is that Trump issued his pledge to appoint a special prosecutor during a presidential debate viewed by tens of millions of people. In one back-and-forth, Clinton said she was glad that someone with “the temperament of Donald Trump is not in charge of the law in our country.”
Trump shot back: “Because you’d be in jail.”
In rallies later, he repeatedly said Clinton’s “illegal” actions were the worst political scandal since Watergate and that the Clinton Foundation was the “most corrupt enterprise in political history.”
The idea of jailing Clinton has long been enthusiastically embraced by his followers and their anger at Clinton was a major motivator for many Trump voters. They have produced merchandise including T-shirts and bobblehead dolls emblazoned with “Hillary for Prison” or Clinton wearing pinstripes or jail jumpsuits.
Their desire to put Clinton in handcuffs has not dissipated with Trump’s ascension to the presidency, and they would surely be disappointed if he backed off his promise. Such a course risks Trump being seen by his supporters as suddenly part of the same “rigged” political system that he long said was protecting Clinton.
“She should be prosecuted,” Shawn Gibby, 50, a maintenance manager in Bessemer City, N.C., said this week. “I want justice to be served. We should be a nation of law and order.”
Said Stephanie Bevens, 46, also of North Carolina: “Hillary should be held accountable — just like anyone else. I’d like to see her investigated, and I think her punishment should be the same as it would be for anyone else. She’s been treated as if she’s above the law. She’s not above the rest of us.”
Giuliani has long said he favors prosecuting Clinton. “I would have brought such a case,” he told ABC News in August. “I would have won such a case.”
On CNN on Thursday, he hesitated when asked whether he would accept the attorney general’s job if Trump also demanded he drop the re-investigation of Clinton as a condition of the appointment.
“We would have to talk about that,” said Giuliani, a former U.S. attorney and No. 3 at the Justice Department in the Reagan administration. “We would have to talk about ... what the ramifications of that to other prosecutions, future prosecutions, how would you couch that? Suppose more evidence came forward a year from now that we don’t know about now that makes it a much worse situation?”
There has been some speculation that President Obama could pardon Clinton, even without her being convicted of any crimes. Giuliani told CNN that he hoped Obama -- and presumably Trump -- didn’t issue one. “I don’t think that would be right because if he pardons her, he’s got to pardon about five other people who helped her,” Giuliani said.
Legal experts said reopening the case — barring the discovery of new and explosive evidence — would either end without charges or be savaged in the courtroom. For one, they said, career prosecutors and agents have already determined that no charges were warranted.
FBI Director James. B. Comey, who previously served in a Republican administration, has said the thorough investigation uncovered no evidence that Clinton or her aides intended to violate espionage laws. In the end, the FBI said, agents uncovered classified information in 193 emails that were part of 81 email chains.
On Oct. 28, Comey sparked a political wildfire when he sent a letter to Congress saying agents were reviewing new emails potentially relevant to the case. On Sunday, two days before the election, he sent a second letter reiterating his earlier position that no charges were warranted after his agents reviewed the new emails discovered on a laptop belonging to former Rep. Anthony Weiner and his estranged wife, Huma Abedin, a Clinton confidant.
If Trump’s political appointees at the Justice Department were to reach a different conclusion upon reviewing the evidence or ordering a new investigation, they might appear vindictive or perhaps unethical.
To make matters more difficult, any future prosecution would be marred by the earlier determination that no charges were warranted, legal experts said.
“It would be a tremendous waste of time and resources,” said Steven Levin, a former federal prosecutor and registered Republican. “It would be a disastrous prosecution.”
Friction could develop between career prosecutors and their political bosses if they saw the evidence differently, and such embarrassing disagreements could become public.
“You are free to disagree with what Comey did, but to pick up the same evidence and just reach a totally different result would make us look like a banana republic,” said a former top Justice Department official in Republican administrations, who requested anonymity to discuss the sensitive subject. “They would need career prosecutors and agents, however. If they just tapped a bunch of political appointees to do the case, the Justice Department building would just explode.”
Special correspondent Jenny Jarvie in North Carolina contributed to this report.
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12:25 p.m.: This article has been updated with Trump’s comments to Wall Street Journal.
6:15 a.m.: This article has been updated with additional background.
This article was originally published at 4 a.m.