In addition to summoning forth some of America’s worst demons, this presidential race has unearthed a number of misconceptions about the relationship between criminal law and politics. Alas, we cannot kill the demons. Two of the misconceptions, on the other hand, we hope to dispatch below.
Misconception Number One: The Presumption of Innocence Applies to Politics
As every American schoolchild knows (or should know), the defendant in a criminal case is considered by the government innocent until proven guilty beyond a reasonable doubt. This principle flows from the Constitution’s Due Process Clause(s), and, as the Supreme Court has explained, exists to “safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.” We as a society have decided that when it comes to criminal punishment, protecting the innocent is more important than punishing the guilty. In William Blackstone’s memorable formulation, “[i]t is better that ten guilty persons escape than that one innocent suffer.” At least in theory, American juries let defendants go even if the prosecution proves they are probably guilty, but fails to prove their guilt beyond a reasonable doubt.
Although this principle is purely a matter of criminal law (and may provoke some disagreement even in that realm), one frequently hears it invoked in other contexts, including the political arena. For example, writing in the Boston Herald on October 16, Adriana Cohen notes that “[u]nder the American justice system you’re supposed to be innocent until proven guilty and every man and woman who is accused of committing a crime is supposed to be afforded the right to have their day in court—but that apparently doesn’t apply to Donald Trump.” Cohen continues, referring to the recent spate of sexual assault allegations leveled against the Republican nominee for president, “[T]he verdict has already been handed out: He’s guilty—before all the facts come in.”
Cohen is certainly entitled to doubt the veracity or even the plausibility of the allegations against Trump, but her reliance on the innocent-until-proven-guilty principle is completely misplaced. The question before the American electorate is whether to make Trump president, not whether to take away his liberty or even his property. In answering this question, voters are free to apply a much lower standard than guilty beyond a reasonable doubt. Indeed, they should apply a much lower standard. This quickly becomes clear when one asks whether voters should reject a political candidate where, say, they believe there is even a 20 percent chance he is a rapist or traitor. Of course they should! Similarly, the Senate should refuse to confirm a judicial nominee if the Senate believed it was 20 percent likely that the nominee had accepted and would accept bribes. Not electing a candidate president does not deprive him or her of a fundamental right—there simply is no right to serve in high office — and electing an unfit candidate for president carries infinitely greater risks than does letting a single criminal go free.
Of course, none of this means voters shouldn’t carefully assess the credibility of allegations made in a campaign; we don’t want mudslingers to win just because they throw a lot of mud. But it does mean we shouldn’t import concepts from criminal law that have no application to politics.
Misconception Number Two: Presidents Lack the Power to Order Prosecutions
Donald Trump has famously and repeatedly threatened to appoint a special prosecutor to investigate Hillary Clinton’s emails. This threat has provoked a huge backlash, including among prominent pundits, some of whom have argued that Trump’s threat is illegal. Here, for example, is David Gergen, an extremely thoughtful commentator with long experience in government, wrote in a blog after the second debate:
Adding insult to injury, he [Trump] then went into an incredulous rant about Hillary’s deleted emails. It was an entirely legitimate attack until he vowed that if elected, he would “instruct” his attorney general to appoint a special prosecutor to pursue her and that if he were President today, she would be in jail.
Say what? Those are the way tin-pot dictators act, jailing their political opponents. If he had done a half hour studying up . . . he would know that under the law, a president can request—but not order—the Justice Department to appoint a special prosecutor and Justice must then make a decision independent from White House control. Trump has a strange tropism toward Richard Nixon, forgetting that such safeguards were put in place precisely because of his abuses of power.
Trump’s threat may be, as Mr. Gergen argues and as we explain below, destructive and misguided, but it is not beyond the powers of the president to appoint a special prosecutor to investigate and/or prosecute a particular individual. A special prosecutor is not the same as an independent counsel, whose appointment under a portion of the Ethics in Government Act passed in 1978 required the involvement of the courts. But the independent counsel portions of that Act (thankfully) expired after Ken Starr’s pursuit of Bill Clinton and have not been renewed by Congress. But there remains (and there was even when the independent counsel provisions were in effect) the presidential power to appoint special prosecutors. This power derives directly from Article II of the Constitution, which vests “the executive authority,” of which criminal prosecution is a major component, in the president. As one of us (Dean Amar) pointed out in a recent column, although “presidents often do, for political and efficiency reasons, like to distance themselves from many prosecutorial decisions, and they may even send the public message that they are going to defer to the recommendations of underlings[,] . . . all that is in the realm of the political and the prudential, not the legal or the constitutional. According to the supreme law of the land, the decision whether to proceed criminally—and the decision whether and when to defer to underlings at all—is one the Constitution commits to the president.”
So Trump’s threat to appoint a special prosecutor to investigate Clinton did not overstate presidential power. But just because Trump would have that power as president does not make his threat a reasonable or wise one. To be sure, one can imagine circumstances in which it might be appropriate for a presidential candidate to announce the intention to have an opponent investigated or prosecuted. For example, Donald Trump has said he could shoot someone in Times Square and not lose voters. Had he committed such a brazen murder with impunity (and assuming federal jurisdiction), it would be reasonable for Clinton to announce her intention to have him prosecuted if she won.
Short of this kind of scenario, however, great caution is in order. As Mr. Gergen and others have pointed out, threatening to jail political opponents is characteristic of dictatorships, not of healthy democracies. It raises the stakes, makes peaceful transitions of power harder, and tears at the country’s political fabric. After all, a major-party presidential nominee is more than an individual; she is the political leader of tens of millions of citizens, many of whom strongly identify with her. These considerations largely explain why President Gerald Ford pardoned Richard Nixon after Nixon resigned the presidency, and why President Obama chose not to prosecute the George W. Bush administration officials who many believe may have been guilty of war crimes. Trump’s threat to prosecute Clinton may have pleased his base, but at what cost?
What is more, Clinton is not accused of murder; she is accused of mishandling emails, conduct the FBI has investigated and determined not to merit prosecution under the relevant statutes. Trump has not explained why FBI Director Comey’s legal analysis and examination of the kinds of cases in which prosecution has been brought against civilians is incorrect, and this makes Trump’s threat look political rather than principled. This, in turn, increases the political damage the threat is likely to cause.
Of course, if making the threat is damaging, carrying it out would be worse. The fallout if Trump actually were to prosecute Clinton could make the last days of this presidential election, which look so dark and ominous now, seem sunny. For this reason, if Trump wins, President Obama might consider employing another presidential power relating to criminal prosecution—the power to pardon. And since Trump himself is likely to have already done things in his business career that someone might want to threaten to indict him for in the future after he left office, perhaps the best course would be for President Obama to pardon both Clinton and Trump. In addition to eliminating the possibility of a divisive prosecution, such a bipartisan gesture would appear more legitimate and might even begin to repair what this ugly campaign has broken.
You are correct in discussing the presumption of innocence with respect to the latest accusations against Trump, but it’s strange that you don’t mention application by Hillary Clinton’s camp of the same misconception in arguing that she must be considered innocent since she has never been indicted or convicted for any of the charges made against her.
It’s arguable that the concept “innocent until proven guilty” as a legal presumption is also a societal value; by which I mean that our society affirmatively prefers to give others the benefit of the doubt until it has been proven otherwise. The authors here appear to confuse the “beyond a reasonable doubt” burden with the not unreasonable notion that we, either inside our outside of a courtroom, should afford everyone the same presumption of innocence that we ourselves would hope to enjoy. While clearly related, they should not be conflated.
This article is a reach in attempts to legitimize Trump’s comments.