One of the more sinister elements of the 2016 Presidential Election was Trump's threats during his debates with Clinton that, following a win, he would try to incarcerate her. So could Donald Trump put Hillary Clinton in jail? Statements that he made during debates, like “if I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation – there has never been so many lies and so much deception,” certainly seemed to imply he was eager to do so. In some ways, he was echoing the rhetoric embraced by his supporters. The chant "Lock her up" was regularly heard at Trump's rallies in response to the fact that Clinton opted to use a private email server instead of a government account while serving as secretary of state between 2009 and 2013. But could he actually lock her up?
In an interview with Joe Scarborough today, Trump's campaign manager Kellyanne Conway refused to give a clear answer as to whether or not Trump would follow through with his threats.
“I would need to discuss that with him. I think you heard his own words last night to the extent that one man can as president and Vice President [Mike] Pence, who is phenomenal, they’re looking to unify the country. We haven’t discussed that in recent days. I think that it’s all in good time. We also — I think that Donald Trump proved too that even amidst a corrupt and rigged system where people are forgotten and don’t feel like they can get a fair shot, they can rise up on Election Day and express their voice.”
How would throwing Clinton in prison work? He couldn't legally simply throw Clinton in jail. We're still living in a democracy, after all. According to the Chicago Tribune, he would have to order his attorney general to appoint a special prosecutor to investigate Hillary Clinton’s use of a private email server. The special prosecutor would have to agree with Trump's own assessment of the situation: that Clinton's use of an email server constituted criminal behavior. Even if it got to this point though, Clinton would still be given a trial. And, given that the FBI has already, on two separate occasions according to the Telegraph and the FBI Vault, cleared Clinton for her use of the email server, it would be extremely difficult for the prosecutor to argue that Clinton should head to jail.
Former attorney general Eric Holder seems doubtful that Trump would be able to find an attorney general to carry out his dirty work for him, with Holder comparing Trump's threats to actions taken by President Richard Nixon at the height of the Watergate scandal.
The incident Holder is referring to is the order from Nixon to his Attorney-General, Elliot Richardson, to fire the special prosecutor investigating the Watergate burglary. Richardson refused to do Nixon's bidding and resigned rather than carry out his order. The following Attorney-General also resigned. When the truth of the matter leaked, Nixon was forced to resign.
This said, Holder's assessment of Trump's prospective Attorney-General may err a little on the optimistic side. In July, one of Trump's prospective attorney generals Chris Christie told Politico that he completely agreed with Trump's assessment of Clinton's email server use and claimed he'd "bring the case" against Clinton if appointed.
But, before we get too anxious, it's worth acknowledging that this situation is profoundly unlikely. Henry Chambers, a professor at the University of Richmond’s school of law, told the Guardian
“He could start the ball rolling by suggesting to the Department of Justice that it start an investigation, but even then it’s kind of nuts. The idea that he could decide on his own, ‘I will put Hillary Clinton in jail,’ is bizarre squared. He himself would be threatened with impeachment.”
So here's hoping Chambers is right and this, along with Trump's other equally controversial promises — from building a wall along the border between the US and Mexico to banning Muslims entering the country — is just hot air.