The Fury of the Mob: Comparing the Calls to Prosecute Clinton and Bush

Posted in: Criminal Law

Many people want to see Hilary Clinton in prison. Many others want the same of former President George W. Bush. In today’s fevered climate, the two calls are seldom examined side by side. Let’s take a look.

To adoring crowds, Donald Trump says Hilary Clinton “has to go to jail.” In Trumpville, Clinton’s mishandling of emails while Secretary of State “is the most heinous, the most serious thing that I’ve ever seen involving justice in the United States—in the history of the United States,” or so he recently told an audience in Florida.

That’s pretty extraordinary, if you stop and reflect on it. I might’ve thought, for instance, that on a list of terrible, horrible, no good, very bad things “involving justice in the United States,” we would put slavery, Jim Crow, anti-Catholicism, anti-Semitism, Japanese Internment, and mass incarceration at least a wee bit ahead of the “extremely careless” use of a private email server. But that’s just me. In any event, in case anyone missed the implication, Trump made it plain: “We have a person that has committed crimes that is now running for the presidency.”

The call to imprison Clinton has produced a predictable response. Jamelle Bouie, writing in Slate, denounced it as “banana republic machismo,” and an attack on “the foundations of liberal democracy,” the sort of thing we could expect “of a despot, not of a president.” The conservative commentator Charles Krauthammer condemned it in nearly identical terms. “That’s banana republic,” he said on FOX News, “something that should never be done.”

But if the call to jail Clinton is wrong, what should we make of the cry to lock up former President Bush? Some on the left routinely demand that Bush and senior members of his administration be punished as war criminals for their role in the post-9/11 torture scandal, sometimes in the most intemperate language. A writer in Esquire, for instance, recently called former Vice President Dick Cheney “the most inexcusable American who ever lived.” Unsurprisingly, conservatives attack these calls; Karl Rove thought they “might be fine in some little Latin American country that’s run by, you know, the latest junta,” but not the United States.

When we place the calls to prosecute Clinton and Bush side by side, some will try to distinguish the two by insisting one position is legitimate while the other is pure political gamesmanship. But we can safely set that criticism aside; the charge of “banana republic machismo” does not depend on the truth of the underlying allegation. It is a contention that, in a liberal democracy, one does not threaten political rivals with retaliatory prosecutions. As my fellow Verdict columnist John Dean recently wrote, “jailing a political opponent is the tactic of dictators; it is the way campaigns are run in third-world countries that pretend to be democratic…, not mature democracies.”

So are the two threats equal? Emphatically not. Oddly, the difference between the two has escaped attention. But we should attend to that difference closely, for it points to something critical about the current political climate.

If we pay close attention to the call by Trump and his acolytes to “lock her up,” we detect something very different from a mere call to prosecute, or even to punish a political rival. Read the speeches, watch the videos, listen to the crowds, and one detects something far more menacing. It is a blind, insensate fury, an animal rage far out of proportion to the perceived offense. Frankly, the call is less that Clinton be subjected to an impartial judicial process and more that she be ripped limb from limb, pilloried and crucified in the public square. The frenzied bloodlust in the cry to “lock her up” conjures not so much the ideal of the law as the specter of a lynching, complete with the degradation and humiliation spectacles that routinely accompanied those savage affairs.

Lynching in the South was always much more than punishment. It was a profound symbolic act that marked and reclaimed in blood and burning flesh a set of sacred social boundaries. It was a public ritual designed to cleanse the community by casting a single wretched soul beyond the Gates of Hell, in the hope that his torture and painful death would be a lesson not just to him, but to others who might be inclined to forget their place. Indeed, for some offenses—the alleged rape of a white woman by a black man is quintessential—certain segments of the population preferred lynching over the law precisely because the courts could not be trusted to deliver this sort of purification ceremony. What’s all this prattle about due process and the presumption of innocence, about the Constitution and the right to counsel? Hah! Get the damn rope.

In this respect, the call to imprison Clinton is of a piece with the other calls for violence in the Trump campaign—the increasingly frightening threats to the media, the angry attacks on peaceful protesters, the thinly veiled appeals to “the Second Amendment people,” and the dangerous charge that the election is “rigged.” It is not a call to deploy the law but to destroy it, to tear it down and replace it with the mob. To Trump’s most rabid supporters, Clinton has come to symbolize all they loathe: ethnic and racial diversity, globalism, secularism, cultural tolerance, feminism, and intellectual achievement. Their hatred is a visceral and toxic mix of misogyny; race, class, and religious resentment; and anti-intellectualism. They do not want merely to defeat her at the polls. They want to lynch her in the public square.

Some may charge that I take this position because I favor prosecuting Bush-era officials, and therefore am inclined to see the attacks on Clinton as different from the attacks on Bush. That is simply incorrect. As I have written many times, I am adamantly opposed to torture prosecutions, even though I represent Abu Zubaydah, the poster child of the U.S. torture program. My co-counsel and I are among the few people in the world who actually know what was done to Zubaydah, and I have no doubt it was torture. In fact, it was far more brutal than people know. None of that makes a prosecution appropriate.

The calls to prosecute former President Bush and future President Clinton have both been denounced in similar terms, and both are misguided. Yet despite these superficial similarities, they are not remotely alike. The former is at least nominally a call for justice. Though I have always opposed the prosecution of Bush-era officials, I recognize the demand as a good faith (if mistaken) attempt to deploy the law to prevent and punish war crimes. The latter, however, has nothing to do with law. It is the cry of a torch-toting mob, invoking not a judicial process, with its constitutional niceties, but a ritualistic purging. Before it’s all over, I would not be surprised if Trump scraped away the last thin veneer that separates “lock her up” from “get the rope.”

  • bookfarce666

    Can the Hague prosecute Bush for the civilian murders, torture, war crimes? It’s time.