Alabama Sen. Jeff Sessions, the president-elect’s pick to be the next attorney general of the United States, has long advocated for the Justice Department staying independent, even of the president.
“You understand that your role is such that, on occasion, you have to say ‘no’ to the person that actually appointed you to the job and who you support?” Sessions asked current attorney Loretta Lynch at her confirmation hearing last year.
“People have agendas, and attorneys general sometimes do, and they have to guard against that and be objective,” Sessions added later.
President-elect Donald Trump, possibly Sessions’s new boss, might have other ideas. A senior Trump adviser suggested Tuesday that Trump would not push for any charges against presidential opponent Hillary Clinton, despite his earlier suggestion to demand a special prosecutor be appointed. Trump himself, pressed on the issue in a meeting with New York Times reporters, said “no” when asked if he would take investigations off the table for the Clintons, according to reporter Maggie Haberman. But he also made comments suggesting he wanted to move beyond the matter and said that a prosecution would be “very, very divisive for the country.”
“My inclination would be for whatever power I have on the matter is to say let’s go forward,” Trump said, according to Haberman’s Twitter, seeming to suggest he did not favor prosecution. “This has been looked at for so long, ad nauseum.”
That last tweet was Trump making clear he doesn't favor prosecution. Added people could argue the Clinton Foundation has done "good work."
— Maggie Haberman (@maggieNYT) November 22, 2016
Kellyanne Conway, who ran Trump’s campaign and now works with his transition, had suggested in an earlier interview with MSNBC’s Joe Scarborough that Trump would not press for any charges against presidential opponent Hillary Clinton, despite his earlier assertion that he would demand a special prosecutor be appointed. Scarborough’s show had reported that Trump would not pursue investigations of Clinton both for her use of a private email server while she was secretary of state and for the financial dealings of her family’s charitable foundation.
— Morning Joe (@Morning_Joe) November 22, 2016
“I think when the president-elect who’s also the head of your party now, Joe, 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,” Conway said.
“Look,” she added, “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 aren’t among them.”
While the president does set broad policy goals of the Justice Department, it’s considered a serious breach of protocol for the president to get involved in individual criminal investigations. Trump would face intense criticism for trying to open or shut down such probes, particularly those involving political opponents. Conservatives criticized President Obama for commenting while the Clinton email investigation was ongoing that Clinton had not jeopardized America’s national security — which some saw as subtly influencing the investigation even though Obama, the FBI and the Justice Department maintained it was done independently.
Legal analysts said Conway’s comments demonstrated Trump did not have a good understanding of how the American justice system works.
“Trump’s implicit assumption that he can direct the Department of Justice to prosecute Clinton — or not — demonstrates a dangerous assumption the president can dictate the department’s prosecutorial decisions,” said Jennifer Daskal, an associate professor of law at American University and former senior Department of Justice official. “But the Department of Justice depends on its independence as the source of its authority and power.”
“Congress should demand a commitment to independence in nomination hearings for Jeff Sessions or any other potential [attorney general], else the Department loses its key source of legitimacy,” she added.
Spokesmen for Trump, Clinton and Sessions did not immediately return messages seeking comment.
Trump had already demonstrated that he felt he could affect the outcome of the Clinton email investigation, saying during a debate that he would order his attorney general to appoint a special prosecutor and that, if he were president, Clinton would “be in jail.” That remark — which Conway dismissed as a “quip” — drew widespread criticism. Even former attorney general Michael Mukasey, long a critic of Clinton for her email practices, said he would “argue against” the idea.
“It would be like a banana republic,” Mukasey said. “Putting political opponents in jail for offenses committed in a political setting, even if they are criminal offenses — and they very well may be — is something that we don’t do here,” he added later.
After the election, Trump did not back down from his earlier remarks. Asked on “60 Minutes” after the election if he would appoint a special prosecutor, he said, “I’m going to think about it” and later, “She did some bad things.” He never ultimately answered the question.
“I don’t want to hurt them. I don’t want to hurt them. They’re, they’re good people. I don’t want to hurt them. And I will give you a very, very good and definitive answer the next time we do ‘60 Minutes’ together,” Trump said.
Stephen I. Vladeck, a law professor at the University of Texas in Austin, said Trump’s call for a special prosecutor reflected his lack of knowledge about the Justice Department, and Conway’s remark Tuesday reinforced it.
“Once again the president-elect has demonstrated his complete lack of understanding of how the government makes these kinds of decisions,” Vladeck said. “The attorney general answers to the president, but the department is supposed to be independent, especially when it comes to prosecutorial decisions. Any president, especially our next president, needs to both understand and respect that — or else they risk politicizing criminal prosecutions in ways that can be damaging.”
If Trump were now merely backing off his call for a special prosecutor, that would — in some ways — reflect a return to normalcy. FBI Director James B. Comey said in July that “no reasonable prosecutor” would bring a case against Clinton or her aides in that investigation, and the Justice Department closed the matter without charges. It would have been more unusual were Trump to order his attorney general to reopen the matter, or to appoint a special prosecutor to do so.
The Clinton Foundation probe, though, is separate, and Trump’s meddling there would be a serious violation of normal procedure. In February, agents from the FBI’s New York field office made a pitch to career public integrity prosecutors to pursue the matter, but they were told they did not have enough evidence, people familiar with the case have said. The agents, though, kept their efforts alive, and the case had not been formally closed — though it was put on hold in advance of the election.
Separately, prosecutors in the Eastern District of Virginia have been investigating Virginia Gov. Terry McAuliffe (D), including his time on the board of the Clinton Foundation. It is unclear whether Trump would also attempt to shut down that probe because it involves the foundation and a longtime Clinton ally.
For his part, Sessions has been critical of the Clinton email investigation, and he has said it “seems like” the FBI had not fully investigated the dealings of the Clinton Foundation while Clinton was secretary of state.
There has been at least one famous instance of presidential meddling in Justice Department affairs. Richard Nixon ordered his attorney general and deputy attorney general to fire a special prosecutor looking into the Watergate break-in, and both men resigned in protest.
This post has been updated with comments Trump made at a meeting with the New York Times.