He wouldn’t, of course, be able to snap his fingers and throw his political rival behind bars. He would have to order his attorney general to appoint a special prosecutor, then count on that special prosecutor to agree with his assessment that Clinton’s email practices violated criminal laws about mishandling classified information. And even if he did all that and Clinton was charged, she would still be afforded a trial, and Trump’s special prosecutor would have to contend with evidence that led the original team of federal investigators to conclude there was not sufficient basis to believe a crime occurred.
Getting that process started, though, would not seem that difficult. Trump gets to pick and appoint the attorney general.
FBI Director James B. Comey recommended in July that neither Clinton nor her aides be charged with any crimes in connection with her use of a private email server during her term at the State Department, saying “no reasonable prosecutor” would bring such a case. He said in recent weeks that his conclusion was unchanged, even after investigators examined a new, potentially relevant batch of emails discovered on a computer belonging to disgraced former congressman Anthony Weiner, the husband of top Clinton aide Huma Abedin.
Trump rallies have sometimes been marked with chants of “lock her up,” and his supporters repeated those cries as the Republican moved toward an upset victory Tuesday night. Kellyanne Conway, his campaign manager, did not rule out appointing a special prosecutor in TV appearances Wednesday morning.
“We didn’t discuss that last night and he did not discuss that with Hillary Clinton on the phone,” Conway said in one appearance.
President Obama could short-circuit the affair entirely, pardoning Clinton before he leaves office in January. Legal analysts have said that could happen even though Clinton is not charged with any crimes. Such was the case with Richard Nixon, who was given a full pardon by Gerald R. Ford before he was indicted for all offenses he “committed or may have committed or taken part in” during his time in office.
Even prominent conservatives in the legal field have said that for Trump to act to jail Clinton would be inadvisable, and it would politicize the Justice Department in an alarming way. Former attorney general Michael Mukasey, one of Clinton’s most vocal critics on the email issue, told The Washington Post last month, “It would be like a banana republic.” Those remarks came after Trump broached the idea of a special prosecutor at a debate.
“I didn’t think I’d say this, but I’m going to say it, and I hate to say it. But if I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception,” Trump said. “There has never been anything like it, and we’re going to have a special prosecutor.”
Later, when Clinton said, “It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country,” Trump replied, “Because you’d be in jail.”
Conway later said on MSNBC’s “Morning Joe” that Trump’s remark about jailing Clinton was a “quip.” She added, “As for the special prosecutor, I think that’s Donald Trump channeling the frustration he hears from thousands of voters out on the stump every day.”
During his victory speech, Trump said, “It is time for us to come together as one united people” and said that Clinton had “worked very long and very hard over a long period of time, and we owe her a major debt of gratitude for her service to our country.” He made no mention of Clinton’s emails.
A Trump spokeswoman did not immediately return an email seeking comment.
This post has been updated.