Contributor, The Volokh Conspiracy

Democratic Nominee for President of the United States former Secretary of State Hillary Clinton meets and speaks to Florida voters at Pasco-Hernando State College East Campus during a rally in Dade City, Florida Tuesday November 1, 2016. (Photo by Melina Mara/The Washington Post)

Back in May, I explained why Hillary Clinton is a lesser evil than Donald Trump. More recent developments have only strengthened the case for that conclusion. Hillary Clinton is a badly flawed candidate I would not normally vote for. I also have little fondness for the Democratic Party as a whole. But Trump is far, far worse. Notwithstanding FBI Director James Comey’s controversial recent announcement about the Clinton e-mail investigation, the gap between the two candidates has actually grown in recent weeks.

I. The Trumpist Agenda.

For many, the principal objection to Trump is his character and temperament. I share those concerns. But his horrendous policy agenda is even more dangerous, particularly his positions on immigration, trade, civil liberties, and massacring civilians. Trump’s immigration policies – the centerpiece of his agenda if anything is – imperil the liberties and property rights of large numbers of native-born Americans, as well as immigrants.

Also telling is Trump’s longstanding admiration for authoritarian rulers like Russia’s Vladimir Putin and the perpetrators of the Tiananmen Square massacre in China. To put it mildly, Trump’s plan to undermine NATO while throwing in with the authoritarians like Putin, is unlikely to make American foreign policy great again. His likely fiscal policies would increase the already overgrown national debt even more than Hillary Clinton’s would.

Many of the issues on which Trump’s agenda is particularly awful are ones he has repeatedly stressed throughout the campaign, and therefore ones that he is particularly likely to act on. For example, he has repeatedly emphasized his support for mass deportations, trade wars, and various efforts to undermine freedom of speech so that he could more easily persecute his critics. Presidents are generally more likely to act on central themes of their campaigns than peripheral proposals they and their core supporters have less commitment to. Although Trump has been inconsistent on many issues, the zero-sum thinking underlying his views on issues such as trade and immigration has been a core element of his world-view since long before the 2016 campaign.

Over and above specific policies, there is the danger that a Trump victory would lead to the transformation of the GOP from a conservative party to a big government xenophobic nationalist party, similar to France’s National Front. This would have a severely harmful effect on the entire political system for years to come. It also undercuts claims that we should elect Trump because he might appoint good originalist judges; in the long run, a Trumpian GOP would be deeply inimical to any such constitutional principles, as they are at odds with much of its agenda.

On all of the above issues, Hillary Clinton is far less dangerous than Trump, and these enormous differences are not outweighed by the very limited set of issues where Trump might potentially have compensating advantages of his own. That is pretty obviously true from that standpoint of political liberals and moderates. But it is also true for libertarians and conservatives who care about individual freedom and limiting the power of government. Most obviously, a Clinton victory would not make either major party significantly worse than it currently is, while a Trump victory might well result in the GOP becoming a white nationalist Republican Party far more hostile to freedom and constitutional restraints on government power than previously. That is likely to have severe negative effects on the political system long after the next administration is over.

Trump is indeed a “change agent,” as his supporters like to put it. But the last thing we need is a major change for the worse.

II. The Role of Divided Government.

Recent developments actually increase the likelihood that a Trump victory would be more dangerous than a Clinton win. The most significant is the growing likelihood that a President Clinton would have to contend with divided government, while Trump would enjoy the support of a GOP-controlled Congress. Most experts agree that the Republicans are highly likely to retain control of the House of Representatives. Even if Hillary Clinton wins the presidency, the Democrats are unlikely to get more than a small majority in the Senate. By contrast, if Trump pulls out an upset victory, it will likely be part of a GOP wave than enables the party to maintain a fairly large House majority, and give it a good chance of holding on to the Senate, as well. Even if they narrowly lose the Senate this year, the party is likely to retake it in 2018, when the electoral map will overwhelmingly favor the GOP.

From a pro-free market perspective, most of the really dangerous aspects of Clinton’s agenda involve the massive increases in spending and regulation she and the Democrats advocate. But most of that would be dead on arrival in a GOP-controlled House. By contrast, members of Congress rarely resist major items on the agenda of a president of their own party, even if some of it is at odds with their preexisting ideology. Particularly in our current age of polarization and partisan bias, both Republicans and Democrats have a strong tendency to excuse behavior by their own leaders that they would never tolerate from the opposing party.

Contrary to some popular mythology on the right, congressional Republicans successfully stymied most of Obama’s legislative agenda since they took control of the House in 2010, and effectively impeded him in other ways, as well. And they are no more fond of Hillary Clinton’s agenda than Obama’s. They would welcome the opportunity to stymie her programs, and investigate any potential abuses of power.

By contrast, they probably would not do much to impede Trump. For example, congressional Republicans are unlikely to launch investigations into Trumpian abuses, because such efforts might damage the party as a whole, and attract the ire of a large part of its base – possibly incentivizing strong primary challengers. GOP members of Congress may not be fans of Trump. But they are unlikely to imperil their own political self-interest by challenging him – especially not after he leads the party to an improbable electoral victory. If anything, such a success would tend to validate the Trumpist agenda in the eyes of ambitious GOP politicians, who would therefore be more likely to fall in line behind it.

Even if Trump does not get the usual strong support from GOP members of Congress, many of the most dangerous aspects of his agenda do not require congressional authorization at all. That includes most of his immigration policy, and his plan to launch trade wars that could easily inflict great harm on the economy. It might also be very hard for Congress to keep him from ordering US troops to commit atrocities.

III. Trump is by far the Bigger Crook.

Clinton’s edge over Trump is not undermined by her various scandals. She is indeed ethically challenged. But Trump is worse.

As FBI Director James Comey put it back in July, her mishandling of classified e-mail was, at the very least, “extremely careless” and well worthy of censure. Recent revelations that she and Huma Abedin might have mishandled additional e-mails don’t fundamentally alter that picture (the new e-mails probably were not even sent by or to Clinton herself). But they certainly don’t make her conduct any more excusable. Against any half-way decent opponent, Clinton’s ethical lapses would weigh heavily in the opposing candidate’s favor.

But if Hillary Clinton may well be crooked, Trump is a far bigger crook. Deliberate mishandling of classified e-mails is a serious matter. But it is not as bad as what appear to be numerous cases of sexual molestation. The revelation of what lies behind Trump’s “locker room talk” is yet another reason why the gap between him and Clinton has actually grown since May.

And if you think it’s intolerable to have a president whose e-mails are under investigation by the FBI, how about one who will soon have to face a trial for large-scale fraud, and a court status conference over an accusation of raping a 13-year-old girl? The Clinton Foundation has ethical problems, but the Trump Foundation is far worse. And then there is Trump’s record of stiffing his employees and contractors, and using eminent domain to kick people out of their homes. Hillary Clinton can be mean and intolerant towards political adversaries. Still, she has a long way to go to match Trump’s extensive record of gratuitous cruelty. Despite her numerous flaws, Hillary Clinton was and is the lesser of the two evils nominated by the major parties. That is even more true today than several months ago.

I sympathize with those who throw up their hands and conclude that they can’t vote for either Clinton or Trump. It’s not quite as bad as having to choose between Sauron and Queen Cersei; but the nation certainly deserves better. Ideally, there would be a superior third party candidate with a real chance to win. But, with the possible longshot exception of Evan McMullin’s unusual situation in Utah, neither he nor Gary Johnson have any real shot anymore. Utah is also special because McMullin has a better chance of taking the state away from Trump than Clinton does. Marginal voters who live in states likely to have lopsided margins might also still reasonably indulge a symbolic third party vote. Such cases aside, we should follow the logic of voting for a lesser evil. Despite various possible objections, it is the best option we have – and the right thing to do.