Legal experts are debating whether Donald TrumpDonald Trump Despite interim defeat on healthcare, Trump’s ethos prevailed McCain says he hasn't met with Trump since inauguration Mulvaney: Let states figure out 'essential health benefits' MORE could actually follow through on his threat to appoint a special prosecutor to investigate Hillary ClintonHillary Rodham ClintonWarren: 'Today is a great day... but I'm not doing a touchdown dance' Hollywood stars weigh in on GOP pulling healthcare bill Hillary Clinton: Today was a victory, 'but this fight isn't over yet' MORE if he wins the White House.
Not only do some former Department of Justice (DOJ) officials claim special counsel would be appropriate, they argue there’s enough evidence to justify reopening the investigation into Clinton’s use of a private email account and server while secretary of State under a new administration.
Trump made the threat during the second presidential debate of 2016 Sunday night.
“I didn’t think I’d say this, but I’m going to say it, and I hate to say it. But if I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception,” Trump told Clinton during the debate.
“There has never been anything like it, and we’re going to have a special prosecutor.”
Constitutional law professors, however, have questioned whether such a move would be possible.
“This claim is questionable since the Independent Counsel law is designed to remove the President and his or her political motives from the criminal investigatory process,” Brendan Beery, who teaches at the Western Michigan University Thomas M. Cooley Law School’s Tampa Bay campus, said in a statement.
“It is also inconsistent with longstanding rules and protocols against political meddling in the business of the Justice Department.”
But Sievert pointed to Justice Department regulation 28 CFR Sec. 600.1, which says that an attorney general can appoint special counsel when he or she determines “that criminal investigation of a person or matter is warranted” and when the “investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the department or other extraordinary circumstances.”
“Obviously it’s a criminal investigation,” Sievert said, noting that some of Clinton’s email records were destroyed and the administration issued immunity to people involved, who feared criminal liability.
“That’s the first part, and then obviously it’s a conflict of interest," he said. "It’s the secretary of State under the current administration.”
Former U.S. Attorney General Michael Mukasey agreed a special prosecutor would be appropriate but said President Obama could take the issue off the table if Trump, the Republican presidential nominee, won the election.
“The whole thing is moot if Trump were elected because President Obama could easily pardon her,” Mukasey said of Clinton, the Democratic nominee.
“We haven’t seen that before, but, goodness, President [Bill] Clinton pardoned Marc Rich, so all sorts of things happen,” said Mukasey, who served as attorney general from 2007 to 2009 under President George W. Bush.
Rich was a commodities trader who was charged with tax evasion, wire fraud, racketeering and trading with the enemy. He was also a big Democratic donor.
Clinton pardoned Rich in the last hour of his administration. Critics have called it the most unjust presidential pardon in American history.
Regardless of pardon power, Hillary Clinton supporters say there’s no guarantee a special prosecutor would even take the case.
“I think they are empty threats because his proposal would have to be accepted by the system,” said Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy.
“A prosecutor would have to accept the appointment and act on it, and it is so transparently motivated by a sense of political retribution it's unclear any professional prosecutor would say, ‘Yes sir, I’m going to carry out this direction.’ ”
Aftergood said he was more concerned about the remark Trump made after threatening to call for special counsel, when Clinton said, “It’s good someone with the temperament of Donald Trump is not in charge of the law in our country."
“Because you’d be in jail," Trump replied.
Aftergood called the comment "chilling.”
“I think it reveals that he views the justice system as a tool for carrying out his political agenda and not a neutral set of procedures for determining guilt or innocence,” he said.
“He wants to punish the people who he has already determined are guilty.”
On twitter, Former Attorney General Eric HolderEric H. HolderOvernight Tech: Senate moving to kill FCC's internet privacy rules | Bill Gates pushes for foreign aid | Verizon, AT&T pull Google ads | Q&A with IBM's VP for cyber threat intel Uber leadership sticking by CEO Top Dems prep for future while out of the spotlight MORE called Trump’s remarks dangerous.
“Be afraid of any candidate who says he will order DOJ/FBI to act on his command. This is dangerous/so is @realDonaldTrump-he's not qualified,” he tweeted.
In a second tweet, Holder said, “In the USA we do not threaten to jail political opponents. @realDonaldTrump said he would. He is promising to abuse the power of the office.”