If President Trump wanted to jail Clinton, this is how he could do it

(Image credit: TIMOTHY A. CLARY/AFP/Getty Images)

published 9 November 2016

"Lock her up!" was a favorite chant at Donald Trump rallies throughout the general election, and now that only a few short months separate him from the White House, he actually has the power to try to do so. Trump even publicly vowed to hire a special prosecutor to go after Hillary Clinton for her use of a private email server and claimed that she would "be in jail" if he is elected.

A president can't just throw someone in jail, though. Here's what would need to happen:

[Trump] would have to order his attorney general to appoint a special prosecutor, then count on that special prosecutor to agree with his assessment that Clinton's email practices violated criminal laws about mishandling classified information. And even if he did all that and Clinton was charged, she would still be afforded a trial, and Trump's special prosecutor would have to contend with evidence that led the original team of federal investigators to conclude there was not sufficient basis to believe a crime occurred.Getting that process started, though, would not seem that difficult. Trump gets to pick and appoint the attorney general. [The Washington Post]

By Wednesday morning, Donald Trump's campaign manager still refused to rule out the possibility of Trump appointing a special prosecutor next year. President Obama has the ability to thwart such a scheme, though, by formally pardoning Clinton before he leaves office, which can be done even though she was not charged with any crimes.

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Still, attempting to jail political enemies has long been an indication of failed democracies. "It would be like a banana republic," former attorney general Michael Mukasey, himself an outspoken Clinton critic, told The Washington Post.

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Jeva Lange was the executive editor at TheWeek.com. She formerly served as The Week's deputy editor and culture critic. She is also a contributor to Screen Slate, and her writing has appeared in The New York Daily News, The Awl, Vice, and Gothamist, among other publications. Jeva lives in New York City. Follow her on Twitter.