Both actions aren’t accepted legal norms, where prosecutors at the Justice Department are supposed to make decisions free from the pressure of the White House. The attorney general – not the president – decides who to prosecute and whether to appoint a special prosecutor to lead the case.
“There is nothing normal about any of this,” said Peter Zeidenberg, a former federal prosecutor who handled cases against public officials, including Vice President Dick Cheney’s chief of staff, Scooter Libby. “The decision would not be the president’s to make – something Trump clearly does not understand. It would be a decision made by his attorney general, who is supposed to act independently of the president in matters such as this.”
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Top Trump aide Kellyanne Conway explained Tuesday that the president-elect would not require the appointment of a special prosecutor to investigate Clinton’s emails or family foundation despite his campaign pledge.
“When the president tells you he doesn’t wish to pursue the charges, it sends a strong message,” Conway said on MSNBC’s Morning Joe. “I think he’s thinking of many different things as he prepares to become the president of the United States, and things that sound like the campaign are not among them.”
Sen. Chris Murphy, D-Conn., immediately criticized the decision. “That’s not how this works,” Murphy tweeted. “In our democracy, the president doesn’t decide who gets prosecuted and who doesn’t.”
That’s the reason President Barack Obama generally declined to talk about the FBI investigation into Clinton, and was criticized when he did.
After Watergate, Congress passed a law allowing for the appointment of an independent counsel to create a check on the president and top appointees.
But lawmakers let the statute expire after independent counsel Kenneth Starr’s investigation of Bill Clinton led to the president’s impeachment and trial.
The law had required the attorney general to appoint an independent counsel – chosen by a panel of judges – when there was substantial evidence of a crime by any of 49 federal officials.
“What we learned from the era when the special prosecutor law existed is that it most often triggered long and expensive investigations for matters that would not be investigated otherwise,” said Abbe Lowell, a defense attorney who has represented a slew of public officials, including governors and members of Congress. “The model for this extraordinary prosecutor ought to be used very sparingly.”
During the presidential race, Trump dubbed Clinton “Crooked Hillary” and said her actions rivaled Watergate. He joined supporters in chanting “lock her up” at his campaign rallies. And at the second debate he told her: If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there’s never been so many lies, so much deception.”
“I think it’s someone making promises that are expedient in the campaign and then perhaps confronting the realities of the job as president,” said Glen Kopp, a former federal prosecutor who practices law in New York. “This is really for the attorney general and the FBI to decide.”
Some Democrats, including Clinton herself, have blamed her loss on the FBI’s decision to open another investigation into her use of a private email system for government business in the closing days of the presidential race. She repeatedly denied any wrongdoing in the investigation that examined whether she shared classified information.
FBI Director James Comey said repeatedly that the agency’s year-long investigation did not result in the evidence to recommend prosecuting Clinton or her aides, but he called them “extremely careless” in their failure to keep government secrets safe. The case was closed with no charges filed.
The FBI prides itself on its independence in investigations and is unlikely to welcome the intrusion. FBI directors are purposely given 10-year appointments to free them from political interference, though they can be fired. Comey’s term began in 2013.
“I think the president-elect had a tough choice there, you could go either way,” said Rudy Giuliani, a former federal prosecutor and mayor who serves as a Trump adviser. “If he made the choice to unite the nation, I think, all those people who didn’t vote against him, maybe, could take another look at him.”
Trump’s decision may allow him to focus on other priorities, including his policy objectives, but it’s likely to disappoint some supporters who may have voted for him based on his pledge to prosecute Clinton.
“If Mr. Trump’s appointees continue the Obama administration’s politicized spiking of a criminal investigation of Hillary Clinton, it would be a betrayal of his promise to the American people to ‘drain the swamp’ of out-of-control corruption in Washington, D.C.,” said Tom Fitton, president of the conservative group Judicial Watch, which continues to investigate Clinton. “President-elect Trump should focus on healing the broken justice system, affirm the rule of law and appoint a special prosecutor to investigate the Clinton scandals.”
The FBI has continued to investigate the Clinton family foundation, examining whether foreign governments and organizations donated money in return for State Department special treatment when she served as the nation’s top diplomat. The Clintons denied those allegations.