Can the president put someone in jail?

The United States is generally governed by the rule of law, not the rule of man. That means, if a person is found guilty of a crime that carries a lawful punishment of jail time, they can be sentenced to spend time in jail by a judge. Presidents can then pardon that person if they want to.

In a dictatorship, the leader would be able to send people to jail on his own authority, which sometimes happens in countries that don’t follow the rule of law. But in the US, we generally follow the “rule of law” and this would not be possible.

As expected, though, neither Donald J Trump on the Republican side nor Hillary Clinton on the Democratic side said anything substantive about education policy in the debate this evening, except for a slight nod to the so-called Trump effect bringing about an increase in bullying in K-12 schools, which I already wrote about last month. That gives me little to talk about concerning the debate itself. But, in bringing up a special prosecutor to look into Hillary Clinton, Mr Trump opened a door to talk about the Constitution.

For this, we have to go back to Bill Clinton. The country and its news-gathering apparatus were distracted by Whitewater, Paula Jones, and Monica Lewinsky while Osama bin Laden was plotting an attack on the US, and the same may be going on now as we obsess over scandals that have little to do with policy and more to do with the character of the next president.

All our news-gathering organizations are shifting coverage away from issues in order to cover an inflammatory videotape and the acid-washing of a private email server. College affordability, healthcare reform, the commitment of forces in Syria, dealing with Assad or even Putin, and other important issues get less coverage and less of our attention.

Mr Trump has been saying on the campaign trail, for some time, that he would instruct his attorney general to appoint a special prosecutor to look into Ms Clinton’s affairs, and this evening he said she “would be in jail” if he were elected. This implies she would be in jail regardless of the findings of fact in any court case or the sentence of any competent judge. This statement on Mr Trump’s part goes against an understanding of how the rule of law works.

Furthermore, in most cases from our history, the party in the White House almost never wants a special prosecutor. Mr Clinton said allowing a special prosecutor in one case was the worst decision he could have made.

The reason the party in the White House usually dreads a special prosecutor is that prosecutors are more often than not used as political weapons. They’re shielded from the political leaders within the Justice Department and the Executive Branch. Why would Mr Trump, if elected, want to appoint a prosecutor that could be shielded from his own administration? Either it’s completely nonsensical or, if there’s a method to the madness, it would give the president an option to shift the blame for any findings away from himself.

In the 1990s, after Mr Clinton “allowed” a special prosecutor that compelled the first First Lady in history to testify before a grand jury, Congress passed a law giving the president less power in stopping the work of a special prosecutor. Richard Nixon fired one who was getting close to the tapes that would incriminate him in the Watergate scandal, but no action ensued vis-à-vis the special prosecutor after the Nixon presidency. Two Justice Department officials resigned, however, instead of obeying Nixon’s order to fire the special prosecutor.

The law has expired, and no one is in any big hurry to use it ever again. “I think I’ve come to the conclusion that we are better off when we have less of these investigations rather than more,” NPR quoted Ken Gormley, president of Duquesne University in Pittsburgh and the author of two books on special prosecutors, as saying. “They should be reserved for very special and extreme occasions.”

So no, Donald Trump, if he were elected president, wouldn’t have the authority to send people to jail. That rule-of-law “thing” kind of gets in the way. And the office of the president has the authority to appoint a special prosecutor (or to order an attorney general to do that, an order the attorney general would be free to refuse) but probably wouldn’t, just to avoid another big distraction to the country he or she would be running.

The intent of Mr Trump’s special prosecutor, anyway, doesn’t seem to be shielding the prosecutor from political corruption in the Executive Branch but finding someone guilty so a judge can sentence her under the law. That doesn’t require a special prosecutor, just a cleaning up of any corruption in the Justice Department. So far, none has been found, and Mr Trump’s call for a special prosecutor seems misguided politically and ill-informed under our laws.

About the Author

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.