Could President Trump Actually Have Hillary Clinton Arrested?

In the aftermath of a campaign marked by supporters chanting “lock her up,” President-Elect Donald Trump currently appears fully occupied with transition duties and post-election rhetoric newly turned civil.

But some in his camp might press for him to follow through on promises such as the one he made in the Oct. 10 debate against Democrat Hillary Clinton: "If I win, I am going to instruct my attorney general to get a special prosecutor to look into your [missing email] situation," Trump told her, "because there has never been so many lies, so much deception."

That was followed two days later by a stump speech in which Trump said, "Hillary Clinton bleached and deleted 33,000 emails after a congressional subpoena. So she gets the subpoena, she gets the subpoena, and after—not before, that would be bad—but after getting the subpoena to give over your emails and lots of other things, she deleted the emails. She. Has. To. Go. To. Jail."

Government Executive interviews with attorneys who specialize in federal employment law outlined the legal checks and balances that would apply if Trump were either to order Clinton’s arrest or task the head of the Justice Department with appointing a special counsel.

Their conclusion: if Trump went through his attorney general following the department’s regulations, he could put a new prosecutor on the case of the presidential candidate he just defeated based on her actions as President Obama’s secretary of state.  

FBI Director James Comey, in July and again in November at the height of the presidential campaign, declared that the bureau had found no basis for prosecuting Clinton. (That determination, however, hasn’t deterred House Oversight and Government Reform Committee Chairman Jason Chaffetz, R-Utah, from planning further probes of the Democratic Party standard-bearer for her emails and alleged conflicts between her State Department work and the Clinton Foundation.)

Under Title 18 U.S Code, Sec. 2071, which “deals with concealment, removal or mutilation of public records,” she could in theory be investigated and charged with a crime for destroying State Department documents,” said John Mahoney, a Washington attorney specializing in federal employment law. “I don’t know that she did that, but the accusations are floated, and it is a felony with three years prison time.”

In representing federal managers and employees, Mahoney makes it a point to advise them that “they can be disqualified from holding office if they willfully” destroy documents.

What seems unlikely is that Trump could simply order the FBI or the U.S. Marshals Service to knock on Clinton’s door in Chappaqua, N.Y., and put her in cuffs.

“In America, to make an arrest, you need probable cause,” said Debra Roth, a partner with Shaw Bransford & Roth. “You’d be hard-pressed to find GS-12s from the U.S. Marshals Service to arrest without probable cause and get a warrant from a U.S. district judge or magistrate.” It’s also true that probable cause determinations are contested in court, she added, and “if an officer knowingly acts unconstitutionally, they are subject to personal liability. That’s our way of keeping the system in check.”

William Cowden, an attorney affiliated with the Federal Practice Group, agreed. “He can’t just send officers unless a police officer sees a crime being committed in his presence,” he said. “In our federal system, a charging document must be filed, either an indictment, information or a complaint.” Clinton “would have to be indicted under the Constitution, under a grand jury for felony,” he said.

What is clearly within Trump’s powers is to appoint a new attorney general, subject to Senate confirmation, who then appoints a special counsel. That prosecutorial appointee must be “an attorney who doesn’t work for the government, independent of the Justice Department,” Cowden said. That prosecutor could then investigate and present evidence to a grand jury, and if an indictment is returned, he could ask the court to issue a warrant for an arrest.

Roth notes that the government’s procedures for a special prosecutor have changed since the Independent Counsel statute, first enacted as part of the 1978 Ethics in Government Act, sunsetted in 1999. Special counsels are now subject to Justice Department regulations rather than the District of Columbia appeals court, under Title 28 of the Code of Federal Regulations, part 600. The attorney general makes the determination to appoint such an outside counsel for one or more of several reasons: "because one of the litigating arms of the department would have a conflict of interest, other extraordinary circumstances, or that it would be in the public interest to appoint an outside special counsel,” Roth said.

The prosecutor must be “a lawyer, with a reputation for integrity and impartial decision-making, and with appropriate experience,” she summarized. He or she would have all the powers of a U.S. attorney.

Though modern special prosecutors are less independent than they were under the old law, Roth said, they are not subject to “day-to-day supervision by the attorney general.” Except that the attorney general can request an explanation of the investigative and prosecutorial steps and then has the power to overrule the prosecutor’s decision. Congress must be notified of the results.

Now that the furious and history-making 2016 campaign is over and Trump bears the title of president-elect, his plans may have changed. “A lot of statements made in political situations are different from statements made after an election,” Cowden said. Cowden’s work in legal defense taught him that the kind of “bribes” that Clinton is accused of taking on behalf of the Clinton Foundation—according to rumors supposedly coming from within the FBI—“are hard to prove,” Cowden said. Clinton doesn’t work for the foundation and receives no pay, and is not hiding where the money is coming from, he pointed out.

The Supreme Court’s recent decision saying federal prosecutors overstepped in their charges against former Virginia Gov. Robert McDonnell also suggest that proving that gift-givers won access is not enough for a conviction. “The Justice Department and the FBI may say they have other matters to pursue and that this would be a waste of time and resources,” Cowden said.

Mahoney added that Trump must choose whether it is “better for his administration and better for the country to not pursue criminal charges against the former Democratic candidate. He may decide it’s not worth it, that the healing process needs to go on to get this country back to work.”