President-elect Donald Trump on Tuesday appeared to back away from his campaign trail vow to pursue criminal charges against former rival Hillary Clinton over her email server and family foundation, with a senior Trump adviser saying his White House will not seek a criminal investigation.
Hours later, Trump himself said that he was no longer committed to prosecuting Clinton, telling editors and reporters at the New York Times that he doesn’t “want to hurt the Clintons, I really don’t. She went through a lot and suffered greatly in many different ways.”
But Trump’s comments were less definitive about his intentions than those made by his former campaign manager, Kellyanne Conway, earlier in the day. Asked whether he had ruled out a prosecution of the former first lady, Trump said “it’s just not something that I feel very strongly about,” according to a tweet from Mike Grynbaum, a media writer for the Times.
Conway had sounded more certain that the incoming president would allow his Democratic rival to live in peace. “I think when the president-elect, who’s also the head of your party, tells you before he’s even inaugurated that he doesn’t wish to pursue these charges, it sends a very strong message, tone and content” to fellow Republicans, she said in interview on MSNBC’s “Morning Joe. “Look, 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 are not among them,” she added.
The uncertainty, while typical of Trump’s often mercurial moods and statements, represents a change from his campaign rhetoric, in which he issued incendiary calls for a special prosecutor to reopen the FBI’s closed investigation of Clinton’s use of a private server while serving as secretary of state. He had also urged investigations of allegations of corruption at the Clinton Foundation, nicknaming the Democratic nominee “Crooked Hillary,” and encouraged chants of “Lock her up!” at his rallies.
If Trump decided to pursue or not pursue a criminal investigation from the Oval Office, it would be an extraordinary break with political and legal protocol, which holds that the attorney general and FBI make decisions on whether to conduct investigations and file charges, free of pressure from the president.
An attorney for Clinton, David Kendall, declined to comment.
While Trump had repeatedly blasted Clinton and her husband, former president Bill Clinton, during the campaign, it is a tradition in American politics that after an election, the victor puts some of the campaign rhetoric behind them. Trump’s decision would be consistent with that sort of historical pattern.
The president-elect’s apparent new position, however, stands in contrast with leading members of his party. Rep. Jason Chaffetz (R-Utah), who is finishing his first term leading the powerful House Oversight and Government Reform Committee, has vowed to continue to investigate Clinton’s email server.
“It would be totally remiss of us to dismiss [the email investigation] because she’s not going to be president,” Chaffetz said after the election, referring to the defeated Democratic nominee.
While FBI Director James B. Comey has repeatedly said the bureau did not find enough evidence to recommend prosecuting Clinton over the email issue, he questioned her judgment in using a private server, calling it “extremely careless.”
Legal experts say any attempt by Trump to influence whether an investigation would be pursued threatens the integrity of the justice system.
“The president-elect has demonstrated his complete lack of understanding of how the government makes these kinds of decisions,” said Stephen I. Vladeck, a law professor at the University of Texas at Austin. “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.”
Trump’s new thinking also drew fire from political supporters and opponents alike.
Democratic Sen. Chris Murphy (Conn.) criticized Conway’s remarks even though Trump’s decision would benefit the former Democratic presidential nominee. “That’s not how this works,’’ Murphy wrote on Twitter. “In our democracy, the President doesn’t decide who gets prosecuted and who doesn’t.”
On the other side of the spectrum, Breitbart News — the conservative site that was one of Trump’s biggest cheerleaders during the campaign — posted a sharply worded headline: “Broken Promise: Trump ‘Doesn’t Wish to Pursue’ Clinton Email Charges.”
Breitbart’s former chairman, Stephen K. Bannon, joined the Trump campaign in August, and Trump has appointed Bannon as his chief White House strategist.
Comey announced in July that he was recommending Clinton not be charged over her email server, thrusting the FBI into the center of a campaign firestorm. He then ignited even more criticism by telling Congress in late October — less than two weeks before the election — that the bureau’s work had resumed.
But after agents sifted through additional emails found on a computer seized during an investigation of disgraced former congressman Anthony Weiner, husband of top Clinton aide Huma Abedin, Comey announced two days before the election that his original conclusion would stand.
During the campaign, Trump said that he would call for a special prosecutor to be appointed to reopen that inquiry.
Normally, a special prosecutor is appointed by the attorney general to investigate a government official for possible misconduct in office.
One of the most well-known special prosecutors in recent history was Kenneth Starr, whose investigation led to the impeachment of Bill Clinton as president in 1998. He was originally appointed independent counsel by a special three-judge panel of the U.S. Court of Appeals in Washington to investigate the failed Arkansas real estate deal involving both Clintons known as Whitewater. His mandate eventually expanded to include possible obstruction of justice by the Clinton administration in dealing with the president’s relationship with White House intern Monica Lewinsky.
Another famous case involving a special prosecutor occurred in 1973 when President Richard Nixon asked his attorney general, Elliot Richardson, to investigate the Watergate scandal. Richardson appointed Archibald Cox special prosecutor, but when Cox subpoenaed Nixon’s tape recordings of conversations secretly recorded in the Oval Office, Nixon ordered Richardson to fire Cox. Richardson refused to fire Cox and then resigned in protest in what was dubbed the Saturday Night Massacre.
In addition to further probing Hillary Clinton’s use of a private email server, Trump has also called for expanding the FBI’s investigation into allegations of corruption surrounding the Clinton Foundation, a large nonprofit group that drew criticism for vacuuming up donations from foreign governments and others with an interest in influencing Clinton while she was secretary of state.
Prosecutors at the Justice Department’s public integrity section advised FBI agents in February that they did not have enough evidence to proceed, people familiar with the investigation have said. But agents in the FBI’s New York office have sought to keep their efforts alive, the people said.
There is also at least one other case that tangentially touches the Clinton Foundation matter: The FBI’s investigation into Virginia Gov. Terry McAuliffe (D), a close ally of both Clintons. McAuliffe, until he was elected governor, served on the board of the Clinton Foundation, and the investigation encompasses his time in that role.
Agents are looking into McAuliffe’s 2013 campaign and his personal finances, people familiar with the probe have said.
If Trump were to attempt to order the McAuliffe or the Clinton Foundation inquiries shut down, it would be a breach of Justice Department protocol — and the type of political interference that many conservatives have suggested occurred in the email case.
Ellen Nakashima contributed to this report.