Republican President-elect Donald Trump’s campaign manager on Wednesday said there has been no discussion of an appointment of a prosecutor to investigate Hillary Clinton’s past practices while serving as President Barack Obama’s secretary of state, a threat Trump made in an election debate.
Trump and Vice President-elect Mike Pence are “looking to unify the country, but we haven’t discussed that in recent days, and I think that it’s all in due time,” campaign manager Kellyanne Conway said on MSNBC when asked about the appointment of a prosecutor.
Real estate developer and former reality TV host Trump stunned the world by defeating Democrat Clinton in Tuesday’s U.S. presidential election. His four-year term starts on Jan. 20.
Asked on CNN about the possibility of a special prosecutor, Conway said: “We didn’t discuss that last night, and he did not discuss that with Hillary Clinton on the phone.” Clinton called Trump to concede the race.
During his victory speech in the early hours of Wednesday morning, Trump said it was “time for American to bind the wounds of division.”
Given Trump’s promise to bring the country together, pursuing a case against Clinton could be a risky political strategy, said Katy Harriger, a political science professor from Wake Forest University in North Carolina.
“I can’t imagine anything more divisive than going after someone who may have won the popular vote,” said Harriger, whose work focuses on the role of special prosecutors in U.S. politics.
The White House on Wednesday also pointed to the nation’s long history of not jailing political rivals in retribution. Appointing a prosecutor would also mean going against the recommendations of the Federal Bureau of Investigation.
The agency, which had been investigating Clinton’s email practices, cleared her just two days ahead of the election and stood by its earlier finding that criminal charges were not warranted.
During his second debate with Clinton on Oct. 9, Trump vowed to put Clinton in jail, attacking her for operating a private email server during her tenure as chief diplomat under Obama from 2009 to 2013, saying she had endangered national security.
Trump said, “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.”
Under U.S. government regulations in place since 1999, the attorney general can appoint a special counsel because of a conflict of interest or because of “other extraordinary circumstances.”
Clinton, who has apologized over her use of a private server, defended herself at the St. Louis debate.
If Trump chose to pursue an investigation, his appointee for attorney general would have “broad discretion” to assign a special counsel to the case, said Devin Schindler, a professor at Western Michigan University’s Cooley Law School.
The White House, asked about Trump’s pledge to jail Clinton, said such a move would be unprecedented.
“We’ve got a long tradition in this country of … people in power not using the criminal justice system to exact political revenge. In fact, we go to great lengths to insulate our criminal justice system from partisan politics,” Obama’s spokesman Josh Earnest told reporters at a daily news briefing.
“That commitment has served our country very well for more than two centuries. And the president is hopeful that it will continue,” he added.
Obama does have the ability to issue a pre-emptive pardon of Clinton that would shield her from prosecution, even though no charges have been filed against her, said legal experts.
Asked about such a possibility, Earnest said he could not speculate about any hypothetical pardons.
After taking office, President Gerald Ford pardoned his predecessor, Richard Nixon, who had not been charged with a crime in the Watergate scandal, in an effort to move past the country’s polarization.
But Obama might be hesitant to issue a pardon, and Clinton to accept one, because under U.S. Supreme Court precedent, “the acceptance of a pardon is the functional equivalent of admitting guilt,” said Schindler.
Peter Zeidenberg, who served as deputy special counsel in the investigation of former Vice President Dick Cheney’s chief of staff and national security adviser, Lewis “Scooter” Libby, over government leaks during the George W. Bush administration, said a special prosecutor would have to take evidence to a grand jury overseen by a judge.
Given what is known about Clinton’s conduct, it is a “nothingburger” of a case, he said.
Despite chants from Trump supporters at his campaign rallies to “Lock her up,” including at his election night victory party, Zeidenberg and other legal experts said Trump may go back on his pledge to appoint a special prosecutor.
“It sounds good at the time, so he says it,” said Zeidenberg. “But he has changed his position so many times he is like a weathervane in a windstorm.”