In last night’s debate, Donald Trump stated that if he were president Hillary Clinton would be in jail. If you look at the entire transcript, that was the last (and most extreme) statement of a much lengthier exchange that went like this:

TRUMP: When I speak, I go out and speak, the people of this country are furious. In my opinion, the people that have been long-term workers at the FBI are furious. There has never been anything like this, where e-mails — and you get a subpoena, you get a subpoena, and after getting the subpoena, you delete 33,000 e-mails, and then you acid wash them or bleach them, as you would say, very expensive process.

So we’re going to get a special prosecutor, and we’re going to look into it, because you know what? People have been — their lives have been destroyed for doing one-fifth of what you’ve done. And it’s a disgrace. And honestly, you ought to be ashamed of yourself.

RADDATZ: Secretary Clinton, I want to follow up on that.


RADDATZ: I’m going to let you talk about e-mails.

CLINTON: … because everything he just said is absolutely false, but I’m not surprised.

TRUMP: Oh, really?

CLINTON: In the first debate…


RADDATZ: And really, the audience needs to calm down here.

CLINTON: … I told people that it would be impossible to be fact-checking Donald all the time. I’d never get to talk about anything I want to do and how we’re going to really make lives better for people.

So, once again, go to We have literally Trump — you can fact check him in real time. Last time at the first debate, we had millions of people fact checking, so I expect we’ll have millions more fact checking, because, you know, it is — it’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country.

TRUMP: Because you’d be in jail.

If Trump had stopped just short of the “because you’d be in jail” remark, I wonder whether there would have been all that much controversy. But it was the “jail” remark that seems to have gotten most of the attention from both sides.

The seriousness of Trump’s remark was also in question, and for what it’s worth, I offer this statement from Trump’s campaign manager:

Donald Trump campaign manager Kellyanne Conway dismissed as “a quip” the Republican nominee’s threat at Sunday night’s debate to “jail” Hillary Clinton for her handling of government secrets if he becomes president…

“That was a quip. And I saw in NBC’s own reporting it was referred to as a quip, so I’ll go with NBC on it. He had already finished his statement. She said something like ‘that’s why you’ll never be president,’ and he said ‘you’d be in jail.’ And so that was his answer,” Conway said Monday on MSNBC’s “Morning Joe.”

But Trump’s own social media director and senior adviser, Dan Scavino Jr., tweeted out the “quip” at about 2 a.m. Monday, complete with a black-and-white photo of a resolute-looking Trump standing at a lectern.

Conway said Trump was not joking about the special prosecutor but was instead “channeling the frustration he hears from thousands of voters out on the stump every day. And they’re very frustrated that she has a different set of rules for her.”

So Conway is saying that although the special prosecutor was a real promise, the “jail” remark was a joke. Who knows, though, whether Trump would actually appoint one? And could he do so?:

But former attorneys general under Republican and Democratic administrations said presidents don’t get to decide on the appointment of a special prosecutor.

“I don’t conceive of that as something that’s in the authority of the president,” said Michael Mukasey, who was attorney general under President George W. Bush and has been an outspoken critic of Clinton for her use of the private email server.

Mukasey and other former Justice Department heads said the president can request a special investigator be named, but it’s up to the attorney general whether to actually appoint one.

Federal law states: “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted.”

Mukasey told ABC News, “The president can say what they want to happen, but the attorney general’s proper response would be, ‘That’s interesting, I’ll take a look. But I decide that, you don’t.’

On the other hand—as the Obama DOJ has shown—because the president gets to appoint the Attorney General in the first place, he or she can try to appoint a simpatico person willing to do his/her bidding.

Trump’s opponents have quickly seized on his statement (or quip) as evidence of his banana republic extra-judicial tendencies—for example, here’s Ezra Klein:

…[T]hreatening to jail one’s political opponents — is how democratic norms die…

…[W]e believe that political disagreement should be legal.

Donald Trump doesn’t seem to care about all that.

In his last line — “you’d be in jail” — he is outright saying that he would imprison Hillary Clinton in office (if he could). This comes despite the fact that there is no evidence Clinton committed a crime in her handling of the email servers, despite lengthy investigations that found evidence of carelessness and dishonesty. That would be a politically motivated prosecution — retribution for daring to run against Trump and attack him during the campaign.

This is everything we feared about Donald Trump.

From the context of Trump’s remarks, however, it is clear that what Trump was talking about was not his opposition to Clinton politically, but her conduct regarding security and her private email server, in particular her lack of compliance with a subpoena. And Trump was not speaking of an extra-judicial proceeding, just implying that under his administration a special prosecutor would have been appointed, recommended charges, and Trump believes Clinton would have been found guilty.

But he didn’t exactly say it that way, did he? And the way he did say it left him open to accusations of the type Klein has leveled. That’s what Trump often does, and you either like it or you don’t.

However, I’m wondering how the middle-of-the-road undecideds will see it, not the partisans. After all, the partisans on both sides are dug in, and the undecideds may hold the key to this election. Will they be swayed by arguments like Klein’s? Or will they applaud Trump’s feistiness? I confess that I do not know.

Or aren’t they paying much attention at all?

[NOTE: In case you’re unfamiliar with the somewhat archaic reference in the title of this post, it’s based on an old show biz term, “traditionally used to ask whether a given product, person, promotional theme, or event will appeal to mainstream…America, or across a broad range of demographic and psychographic groups.”]

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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