(E minus 22) The second presidential debate was a brawl, with the candidates attacking each other with all the ammunition at their disposal. It wouldn’t be very edifying to comment on all the blows exchanged, but we would like to focus on one particular line of attack that raised many eyebrows. Transcript, 10/9/16. The first question re “modeling appropriate and positive behavior for today’s youth” led to a series of exchanges about a recently surfaced recording (2005, supposedly private conversation between Trump and Billy Bush of NBC) in which Trump made lewd comments about women and his privileged status as a celebrity.
Trump tried to characterize the conversation as “locker room talk,” which he wasn’t proud of and had already apologized for, but Clinton said it was part of a larger pattern in which Trump owed apologies to just about everyone. Her litany included asking questions about whether President Barack Obama had been born in the United States. “He owes the president an apology,” Clinton concluded, “and he owes our country an apology and he needs to take responsibility for his actions and his words.”
It was Clinton who should be apologizing for things, retorted Trump, including starting the birther controversy during the Democratic presidential primary in 2008. His last and largest point was Clinton’s use of a private e-mail server for official (as well as personal) business while serving as secretary of State and the efforts to cover this up afterwards. Multiple violations of law had been swept under the rug by the FBI, and if elected Trump would have a special prosecutor appointed to investigate.
. . . 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. There has never been anything like it. And we’re gonna have a special prosecutor. When I speak, I go out and speak, the people of this country are furious. In my opinion, the people that have been long time workers at the FBI are furious. There has never been anything like this where e-mails, and you get a subpoena [from Congress according to a subsequent statement by Trump]. You get a subpoena, and after getting the subpoena you delete 33,000 e-mails and then you acid wash them or bleach them, as you would say. Very expensive process. So we’re gonna get a special prosecutor and we’re gonna look into it. Because you know what, people have been -- their lives have been destroyed for doing 1/5 of what you have done. And it’s a disgrace, and honestly, you oughta be ashamed of yourself.
RADDATZ: Secretary Clinton, I will let you respond.
CLINTON: Everything he just said is absolutely false, but I’m not surprised. In the first debate, I told people it would be impossible to be fact checking Donald all the time. I would never get to talk about anything I’d want to do and how we’re really, going to really, make lives better for people. So once again, go to Hillaryclinton.com. We have literally Trump - you can fact check him in real time. Last time at the first debate, we had millions of people fact checking so I expect we will have millions more fact checking because, you know, it's just awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country.
TRUMP: Because you would be in jail.
Some observers (generally Clinton supporters) perceived Trump’s line of attack as an assault on the rule of law in this country – the sort of thing that happens in dictatorships or lawless third world countries (aka banana republics), but was surely out of place in the United States. Faux press outrage on Donald Trump calling on Hillary Clinton’s jailing, Kelly Riddell, Washington Times, 10/10/16.
“OK, not to sound too corny, but what makes this country different from countries that have dictators in Africa or Stalin or Hitler or any of those countries with dictators and totalitarian leaders is that when they took over, they put their opponents in jail,” CNN’s Dana Bash said after the debate.
Jonathan Katz, a freelance journalist at The New York Times, agreed. “Far scarier than Trump’s full-dictator turn last night is the fact that many Americans don’t understand what was wrong with it,” he wrote on Twitter. Other observers (generally Trump supporters) were delighted to see someone going after Clinton about the e-mails and felt “you would be in jail” was one of the Republican candidate’s best lines of the night. Ibid.
Mr. Trump never said he would throw Mrs. Clinton in jail without due process. He said he’d elect a special prosecutor to hear the case. As Ben Domenech, founder of the Federalist, wrote, “Appointing a special prosecutor does not equal throwing in jail. Unless she’s, you know, guilty.”
Query: Which side had the soundest arguments, and why? Let’s tackle this in Hegelian style (thesis, antithesis, synthesis).
A. Preserve the rule of law – Many examples come to mind of outspoken people in other countries being thrown in jail (or even executed), not because they broke the law but simply to shut them up. And surely this is not a practice that should be tolerated in this country, because that would be the end of our constitutional republic in which all views can be expressed (short of incitement to violence, etc.) and the country’s political leaders are ultimately subject to the wishes of the majority.
Granted that Trump only specifically talked about appointing a special prosecutor, it seemed apparent from the context that he wasn’t contemplating an impartial, fact-based investigation. Trump’s promise to jail Clinton is a threat to American democracy; A candidate who accepted the nomination to chants of “lock her up!” crosses a dangerous line, Yoni Appelbaum, theatlantic.com, 10/10/16.
There are a number of legal mechanisms for the appointment of special counsel by the attorney general, all designed to allow for investigations of executive-branch officials free from the threat of political interference. Trump proposed the opposite: directing his attorney general to appoint a prosecutor to go after a political rival who he’s publicly said should “be in jail.”
Some delegates at the Republican national convention may have thought chanting “lock her up” was a joke, but to others the suggestion was serious. Ibid.
“She’s mean and nasty,” said Tony Scannapieco, the Republican chair of New York’s Putnam County. “She’s a crook. She should be locked up.” David DiPietro, a state assemblyman from Erie County, had also joined the chant. He felt that she’d intimidated FBI Director James Comey into not pursuing charges. He “didn’t want to be found dead,” DiPietro said. “It’s as simple as that.” Bill Reilich, the town supervisor of Greece, New York, was equally emphatic. “99.9 percent of the people are law abiding citizens, and they know that if they break the law there will be consequences,” he said. There have been periods in American history when the rule of law was short-circuited in one way or another, but it’s always proven possible to recover from these lapses and restore higher standards. Thus, the McCarthy era ended with the downfall of the Republican senator from Wisconsin; his tactic of publicly attacking people without producing evidence to support the charges would not be accepted today.
Note that Trump had a long-term association with Roy Cohn, an aging attorney who represented the rising business magnate in many matters and was also a personal friend. Cohn reinforced Trump’s instincts to seek public attention, use hardball tactics to steamroller opponents, and never walk away from a fight if there was a chance of winning it. What Donald Trump learned from Joseph McCarthy’s right-hand man, Jonathan Miller & Matt Flegenheimer, New York Times, 6/20/16.
Decades later, Mr. Cohn’s influence on Mr. Trump is unmistakable. Mr. Trump’s wrecking ball of a presidential bid — the gleeful smearing of his opponents, the embracing of bluster as brand — has been a Roy Cohn number on a grand scale. Mr. Trump’s response to the Orlando massacre, with his ominous warnings of a terrorist attack that could wipe out the country and his conspiratorial suggestions of a Muslim fifth column in the United States, seemed to have been ripped straight out of the Cohn playbook.
If Trump was elected president, we might all live to rue the day.
B. Restore the rule of law – “No one is above the law,” it’s been said, but this isn’t necessarily true in practice. Some people get away with major transgressions; others are pursued vindictively for comparatively minor offenses. And it’s not simply luck of the draw; political leanings and connections are a big factor in how people get treated.
We recently presented a series of examples to demonstrate this point, including a comparison of two cases involving the handling of classified materials. Clinton received a verbal reprimand from FBI Director James Comey for operating a private e-mail server while serving as secretary of State. Former General David Petraeus was prosecuted and subjected to a six-figure fine (but no jail time) for offenses that were far less extensive. Are some people more equal than others? 9/19/16
Additional facts have come to light about the Clinton server probe since mid-September, and they put the administration’s handling of this matter in an even less favorable light. James Comey and Loretta Lynch should be impeached for whitewashing Clinton’s crimes, Sidney Powell, observer.com, 10/11/16.
It’s easy to see now why Lynch secretly met Bill Clinton on an airport tarmac on June 27. Only a few days later, the FBI had its little chat with Hillary—neither under oath nor with a rights warning—in the presence of her coconspirators. Then, Hillary announced she would keep Lynch as Attorney General if she is elected president. Surely by coincidence, the very next day Comey does his song and dance ending the “investigation.”
Comey’s “investigation” was a farce. Any former prosecutor worth a flip would have convened a grand jury, issued subpoenas, gotten search warrants, seized computers, run wire taps, indicted the Clinton cabal, and squeezed the underlings to plead guilty and cooperate. This business of friendly chats, immunity agreements handed out like party favors, and side deals that include the Attorney General approving the destruction of evidence to keep it from Congress doesn’t happen for others targeted by the feds.
Also note that Trump wasn’t the first presidential candidate to promise special investigations into legal issues; two Harvard Law School graduates beat him to it.
In April 2008, Sen. Barrack Obama pledged and later made good on an investigation of interrogation techniques for captured terrorists. Trump’s special prosecutor; Where do you think he could have come up with that lousy idea? Wall Street Journal, 10/10/16.
“What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated.” He went on to say he didn’t want something that would [be]“perceived” as a “partisan witch hunt,” but the signal was clear.
This year, Sen. Ted Cruz was even more vocal than Trump about looking into Clinton’s conduct. The only significant difference was that Cruz made his comments before the FBI investigation was concluded. The GOP runner-up also wanted to jail Hillary Clinton, Byron York, Washington Examiner, 10/11/16.
Assume all the [Banana Republic] critics are correct. And then ask: Were they listening during the Republican primaries? In those contests, the man who finished second in the race, a Harvard-trained lawyer and one of the brightest legal minds of his generation, also openly expressed a desire to use the powers of the presidency to put Hillary Clinton in jail. No doubt Trump’s way of promising further investigation was clumsy, he didn’t study the law at Harvard after all, but it seems quite unlikely that he would attempt to unleash a “kangaroo court” trial of Clinton after winning the presidency – let alone be allowed to do so by public opinion. The rule of law is dependent on trust. If the perception sets in that the legal system is rigged and “ordinary people” have no say unless they unite against the establishment, as Trump and Senator Bernie Sanders repeatedly suggested during this political season, that may prove more destructive than promising legal action after the election.
A Clinton victory might convince people that the system is indeed rigged.
C. No ready compromise – We’re persuaded that the Clinton server was unlawful and the FBI investigation was a farce. Also, the personal attacks on Trump have been underhanded, vicious and relentless. One can hardly fault his instinct to fight back.
On the other hand, as the adage goes, “two wrongs don’t make a right.” And appointing a special prosecutor after the election (assuming a Trump victory) might set a bad precedent for the resolution of future political controversies.
Isn’t the better course to debate such issues during political campaigns, but then put them to rest and get back to governing the country afterwards? Yoni Appelbaum, op. cit., 10/10/16.
Whichever party loses in November will need to find a way to accept the results, even if its members have convinced themselves during the heat of the campaign that the election of their opponent portends the dissolution of the Republic. And the members of whichever party prevails will need to resist the impulse to avenge themselves for the attacks they’ve endured, the outrages they’ve suffered over the course of a long and bruising campaign.
This may sound reasonable on its face, but notice that Mr. Appelbaum suggests Trump is running out of time to learn this “essential lesson” without commenting on the state of mind of Clinton or her supporters.
Far from reaching out to the other side and seeking to heal the rift in this nation’s body politic, there is reason to fear that a Clinton administration would make every effort to complete the transformation of America from a free market economy into a European style welfare state. What this campaign is really about, Monica Crowley, Washington Times, 10/11/16.
Like Mr. Obama, Mrs. Clinton is constantly positioning herself as a great defender of the middle class, but much of what they both have done has been geared toward destroying it: record government spending, exploding deficits, inflating the currency and devaluing the dollar, raising taxes, burdening businesses with ever-increasing costs and regulations. While they hit the highest earners, their real target is the middle class, which is less able to manage the leftist economic assault. Their ultimate goal is to so weaken the middle class that it becomes utterly dependent on government as well.
In this connection, every effort would be made to turn the US Supreme Court into a left-leaning body that would deprive those who might wish to challenge the current path of the ability to do so. Consider Clinton remarks in the debate about the justices she would appoint. Transcript, 10/9/16.
I would want to see the Supreme Court reverse Citizens United and get dark unaccountable money out of our politics *** understand that voting rights are a big problem in many parts of the country [and that] we don't do always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise *** stick with Roe v. Wade and a woman’s right to choose *** stick with marriage equality *** So I have clear views about what I want to see to change the balance on the Supreme Court ***
What about upholding the Constitution, which Trump has identified as a priority for the Supreme Court? No worries, because in the liberal mindset this document is passé. Judge Richard Posner (7th Circuit): “No value” in studying the US Constitution, Jessica Chasmar, Washington Times, 6/27/16.
“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”
If Clinton won the presidency in November, suggests one observer who is far from a Trump fan, it would be crucial for Republicans to retain control of Congress lest their influence be destroyed for the foreseeable future. Trump’s party of one, Daniel Henninger, Wall Street Journal, 10/12/13.
As to relaunching the past year’s populism project for 2020, that’s a pipe dream if Democrats win it all by default. Full progressive government control, including a compliant Supreme Court, will impose so many political constraints, notably on fundraising, that the populists will have to head into the woods with the Bundy family.
CONCLUSION: This election is a give-no-quarter contest and there will be no prizes awarded for coming in second. All things considered, we don’t see Trump’s promise of a further investigation of the Clinton e-mail server and related matters as out of line. However, overstating the point isn’t likely to aid his cause.
The attacks on Trump re “locker room” talk and alleged sexual misconduct have also been overdone in our opinion. No one ever thought Trump was a choir boy, and the professed shock and posturing about the recent revelations is quite hypocritical.
We would encourage both candidates and the moderator (Chris Wallace of Fox News) for the 3rd and final debate (Oct. 19) to declare a moratorium on personal attacks and talk about the issues.