Scandals and legal issues are not new to US presidential campaigns, but without a doubt this campaign has trumped everything we have seen in recent years.
Is it possible to make sense of all of the issues, and are they mostly wrapped up as of this week’s dramatic developments? Or will they continue to impact the election and beyond? First, there is the presumptive Republican presidential nominee, Donald Trump.
Ironically, even as there are no current criminal investigations pending against him – as there were against presumptive Democratic presidential nominee Hillary Clinton until Tuesday – he has some deeper rule-of-law vulnerabilities.
The starting point is the multiple civil fraud lawsuits pending against him relating to his failed Trump University initiative.
His customers say they were suckered into paying bigger fees than advertised without getting the support they were promised.
But these are just embarrassing civil cases with no criminal implications.
If Trump had not made provocative statements about judges and law enforcement, there would be a lot less to say about his issues with the rule of law (even if they might be politically damaging).
However, in trying to deflect public criticism relating to the fraud cases, he attacked the judge in the largest fraud case, Cohen v. Trump, saying US District Judge Gonzalo P. Curiel is biased and needs to be disqualified because his parents were born in Mexico.
The “premise” of this allegation is that Trump’s policy of expelling 11 million people living in the US illegally and building a wall to keep Mexicans from crossing the border has raised such hatred against him that it would make any Mexican- American unable to be fair to him.
This allegation gained Trump bipartisan condemnation, and experts have cited multiple problems with it.
First, the judge was born in Indiana, which seems as “American” as one can get and makes the allegation just seem ridiculous.
Also, the judge has not even ruled against Trump, he just would not dismiss the case on pretrial motions. Whether Trump wins or loses, there are clearly two sides to the story, so there is nothing biased on the face of the decision to go to trial.
Second, if taken to its logical conclusion, the premise would suggest that anytime Trump offends African-Americans or women or other large groups, he could declare all of them biased as well. This not only would make it hard to find judges but undermines the idea that judges can transcend their ethnic background, without which the idea of an impartial judiciary crumbles (and this in cases not involving controversial constitutional issues).
The broadest concerns by observers are that Trump does not accept the judicial branch’s independence in the US’s separation of powers model.
Former New York mayor Rudy Giuliani and former US ambassador to the UN John Bolton have told The Jerusalem Post that he does not always mean what he says in the energy of a campaign rally moment. But that does not lessen the concerns of even many top Republicans, who have started to switch sides.
All of this could be viewed as an unforced error as, once again, the fraud cases are just about money, with no criminal side.
The next legal issue relates to human rights law and the laws of war.
Always looking to dominate the news cycle with a flamboyant statement, on Tuesday Trump appeared to praise former Iraqi dictator and US-Israeli archenemy Saddam Hussein’s disrespect for the rule of law.
He made it clear that Saddam was a “bad guy,” but then praised him for his efficiency in killing terrorists, saying: “They didn’t read them their rights. They didn’t talk. They were terrorists. Over.”
This is not the first time Trump has expressed a readiness to disregard human rights and the laws of war in a far more unqualified manner than even many US security hawks who call for pushing the pendulum of balancing security needs and human rights more toward security.
In March, he said that he would order the US military to kill terrorists’ families. He made no qualifications about the families being actively involved, or being willing to kill them as collateral damage when trying to target an arch-terrorist.
As for Trump’s Tuesday comments, while US security hawks have opposed giving terrorists their Miranda rights in certain situations, it has been as part of an allowance to use physical pressure or torture while interrogating them, not as a license to kill.
In the same March event, Trump also said: “We should go for waterboarding and we should go tougher than waterboarding” in interrogating terrorists – and no one is clear on what further form of torture he meant. The rack? He even attacked rival Ted Cruz, no slouch on treating terrorists, for waffling on supporting waterboarding and confirmed his views later.
Then came the FBI director James B. Comey’s climactic decision Tuesday to recommend to the US Justice Department against an indictment for Clinton’s email scandal. His decision was the climactic one since US Attorney-General Loretta Lynch adopted it as her own within a day and apparently without doing any second-guessing.
We will get deep into that decision in a second – a decision criticized by many.
But if many critics focused on the details of the decision and the substance of the FBI’s statements, Trump just dismissed the whole thing as “rigged.”
Does this mean that if Trump were president, he would push around the FBI along with the courts? Whatever problems the FBI’s decision, may have had, it was made by Comey, a lifelong Republican, so few understood the allegation of the probe being rigged.
Regarding the substance of the FBI’s decision, which cleared the way for Clinton to continue her pursuit of the presidency, it still left questions about her commitment to the rule of law in certain instances where the Clintons were seen as having felt entitled to special privileges.
The decision was confusing, as Comey blasted Clinton and her aides for “extremely careless” behavior and cited her private email server as having 110 emails in 52 email chains (out of 30,000 emails) which contained classified information, eight of them top-secret information.
Notably, even if the number was small in percentage, this contradicted Clinton’s statements that none of the emails were classified at the time she dealt with them.
How would that not translate into an indictment under a lower gross negligence standard that does not require an even higher level of intent? First, many of the applicable laws in question required a high level of intent.
Second, Comey explained that regarding all violations, there were no other factors, such as vast quantities of material being exposed in a way that showed disloyalty to the US or obstruction of justice, which could combine with Clinton’s carelessness to warrant an indictment.
However, his closing point threw many people for another spin, seeming to say that other people who committed the same crime might still get indicted, even though the presidential nominee was getting off.
How does that not sound like favorable treatment? Read carefully, this statement, while it could have been clearer, probably meant that others with similar circumstances but also with an aggravating factor (which Clinton lacked) might still get indicted.
Of course, the absence of an indictment does not really clear Clinton in many detractors’ and independents’ eyes, as what has hit her standing so badly has never been arguments of disloyalty but her acting as though she were above limits that others observe and her trying to cover her tracks instead of admitting errors upfront.
That cloud of bending the rule of law when inconvenient may continue to hang over her for multiple reasons.
She took a long time to apologize for the scandal, and when she finally apologized, she did it halfheartedly several times before a full-throated apology.
Also, she dragged her feet on handing over some of the emails and had deleted various emails, which were later found on other people’s servers, giving the appearance of covering her tracks – even as Comey was careful not to attribute to her any intentional cover-up.
Whether Clinton should have really known better and more fully understood the cyber-hacking vulnerabilities she exposed herself to, considering that some recent secretaries of state (though not all) also held private email accounts, is less of a rule of law issue and more of a question about judgment.
But the latest rule of law issue was Bill Clinton’s shady-seeming meeting last week with Lynch (who even apologized for holding the meeting) on an airport tarmac when their private airplanes happened to be parked next to each other.
No one has evidence that the meeting was anything other than old friends having a quick quiet catch-up session, and Comey’s public tying of her hands by publicly announcing his decision before she knew about it and saying that “no reasonable prosecutor” would file an indictment reduces some concerns.
But Bill appointed Lynch to her first big US attorney position when he was president, and Hillary will be able to extend her term if she wins the presidency – with The New York Times even reporting that she is considering letting Lynch stay on.
That Bill or Hillary or both thought that such a private meeting was something that was acceptable, even if in the end Lynch’s decision appears to have been a passive endorsement of Comey’s, shows that the entitlement and rule of law issues are not entirely in the past.
In fact, since Lynch did not recuse herself from the decision or promise to step down at the end of US President Barack Obama’s term, the meeting will fuel conspiracy theories throughout the election and even after if Hillary is elected.
All of this highlights that whether Trump or Clinton is elected president, there are likely to be rule of law issues long after the inaugural ball.