During Donald Trump's successful White House campaign, his massive crowds thundered: "Lock her up. Lock her up."
What he didn't say was that, as president, he would not have the authority to appoint a special prosecutor to investigate Hillary Clinton, much less jail her, as Trump threatened during a debate. That's the jurisdiction of the U.S. Justice Department, which is supposed to work outside the influence of politics.
Now that he's won the election, the president-elect is sending a signal both to Congress and, perhaps even his incoming attorney general, that it's no longer politically beneficial to try to prosecute the former Democratic presidential nominee. In a Tuesday meeting with editors and reporters at the New York Times, Trump said he doesn’t “want to hurt the Clintons, I really don’t. She went through a lot and suffered greatly in many different ways.”
While Trump said he's not taking a potential prosecution off the table, his campaign adviser Kellyanne Conway was more definitive when she told MSNBC that the president-elect hopes Congress will forgo further investigations of Clinton. “I think when the president-elect, who’s also the head of your party, tells you before he’s even inaugurated that he doesn’t wish to pursue these charges, it sends a very strong message, tone, and content to the members” of Congress, Conway said told MSNBC's Morning Joe.
"He was brilliant in neutralizing the harsh negative attitudes towards himself by making Hillary Clinton equally distasteful," said Larry Jacobs, a presidential historian at the University of Minnesota. "Now he’s shedding it once in office because it would hurt him," he said.
The belief among Trump's supporters that Hillary Clinton was a criminal who would end up in jail was a powerful message in a campaign defined by harsh personal attacks more than policy differences. Trump even coined a nickname for her: "Crooked Hillary." A recent poll by YouGov and The Economist showed that 62% of Trump voters believed in his campaign promise to appoint a special prosecutor. Now Republican strategists say Trump was never serious about putting his political opponent behind bars. "To Donald Trump it was more a chant to get her out of government," said Brad Blakeman, a former senior staff member to President George W. Bush.
Indeed, legal experts had warned that, only under authoritarian regimes, can leaders unilaterally jail political dissidents and opponents, and especially not under the U.S.'s carefully constructed democratic system of checks and balances and separation of powers.
Now Trump hopes to improve his own historically low approval ratings as he seeks to govern a deeply divided nation. In his New York Times interview Trump lamented the political ramifications of pushing for an investigation, saying "I think it would be very very divisive." Yet Democrats are angered that the brash real estate billionaire benefited so significantly from pushing the narrative, even insisting just days before the election that the FBI would still indict Clinton. Regardless of his intentions, Comey helped Trump by making unprecedented public remarks about his investigation when, two weeks before the election, he said his team had come across further emails that might be relevant to the case. It wasn't until nine days later — an interval in which 40 million Americans cast early ballots before the election — that Comey said it was a false alarm. That was two days before the election.
"The whole tactic was to misdirect" attention from Trump's negatives, said David Mercer, a former top official in the Democratic National Committee. The issue masked "his lack of vision, having no ideas for the country for how to create jobs. The only thing he could reach for and from afar was 'if I’m president I will prosecute you.'” said Mercer. It also distracted from his own legal troubles. Trump recently settled a fraud case against his now-defunct Trump University for $25 million and is facing 75 additional lawsuits, according to a USA TODAY analysis.
The investigation of Clinton's private email server was an outgrowth of a special House committee to investigate the 2012 terror attacks in Benghazi, Libya, which House Majority Leader Kevin McCarthy publicly credited with driving down Clinton's poll ratings. The strategy became increasingly effective as Republicans built up expectations that Clinton would be indicted by the Federal Bureau of Investigation. FBI director James Comey, a Republican, ultimately determined that "no reasonable prosecutor" would press criminal charges based on the evidence. With Clinton enjoying a sizable lead in head-to-head polls, Republicans cried foul and Trump ramped up his complaints of a "rigged system."
"The investigation itself came out of a political atmosphere," said Julian Zelizer, a presidential expert at Princeton University. "It was just trumped up during the campaign itself," he said. Some of Trump's most enthusiastic backers angrily taunted Clinton's motorcade with signs reading "lock her up" in campaign stops across the country. "Obviously some of his supporters might be angry because they believed that chant. If he moves on to other issues they will as well," said Zelizer.
Judicial Watch, a conservative group that's pursued many investigations and lawsuits into the Clintons, responded with dismay to the news. "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," Judicial Watch President Tom Fitton said in a statement.
During the campaign, Trump threatened Clinton repeatedly with further investigation of her use of a private e-mail server as well as the fundraising practices of the Clinton Foundation. During one of his debates with Clinton, Trump told her: “If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation further.
Almost immediately after the election, Trump began sending signals he would not pursue anything against Clinton or her husband, former President Bill Clinton. "I don't want to hurt them," Trump said this month on CBS' 60 Minutes. "They're good people. I don't want to hurt them."
During her MSNBC interview Tuesday, Conway said Clinton “still has to face the fact that a majority of Americans don’t find her to be honest or trustworthy,” and, “if Donald Trump can help her heal, then perhaps that’s a good thing to do.”
Jacobs, the historian, said calling off congressional investigators is "the right thing to do" for Trump. "Donald Trump doesn’t want to enter office with the lowest approval rating of any president in history, and he’s got to find a way to get out from underneath the acrimony of the campaign and at least get a little honeymoon," he said. "The opening few weeks have been rocky."
Contributing: David Jackson