Appoint a special prosecutor to investigate Hillary Clinton
Justice Department taking harder look at Clinton, but pushes back on calls for special counsel
Attorney General Jeff Sessions has tasked senior prosecutors with exploring whether alleged misdeeds by Hillary Clinton warrant further investigation, but he pushed back on calls to appoint a special counsel.
The Justice Department disclosed its new tack on Clinton to Republican members of the House Judiciary Committee in a Nov. 13 letter. But if the department's letter seemed to hint it had moved closer to appointing a special counsel for Clinton, Sessions' testimony on Capitol Hill the following day appeared to tamp down these expectations.
Meanwhile, Trump has continued to press the department and FBI to pursue Clinton. The president has been particularly assertive as the investigation into his campaign's ties to Russia has escalated, leading critics to charge that Trump's hectoring is an effort to divert attention from Special Counsel Robert Mueller's findings.
The Justice Department's Nov. 13 letter to GOP lawmakers said Sessions had "directed senior federal prosecutors to evaluate certain issues" the committee raised, which includes Clinton's role in approving the sale of Uranium One, and alleged illegal Clinton foundation dealings. (See our explainer on Uranium One here.)
The letter states that prosecutors, who will report directly to Sessions and his deputy, have been told to "make recommendations as to whether any of the matters not currently under investigation should be opened, whether any matters currently under investigation require further resources, or whether any matters merit the appointment of a Special Counsel."
But at a hearing before the House Judiciary Committee the next day, Sessions pushed back one Republican member who argued there is ample evidence to launch a special prosecutor now.
"I guess my main question is, what's it going to take if all of that, not to mention the dossier information, what's it going to take to actually get a special counsel?" said Rep. Jim Jordan, R-Ohio, referring to allegations that the Clinton campaign financed the controversial Fusion GPS dossier containing derogatory information about Trump.
In a spirited back-and-forth with Jordan, Sessions said "it would take a factual basis that meets the standards of the appointment of a special counsel." He added that the department will "use the proper standards" and "sometimes we have to study what the facts are and to evaluate whether it meets the standard required a special counsel."
At one point Sessions said, " 'Looks like' is not enough basis to appoint a special counsel."
A Justice Department spokesman later said Sessions had been speaking generally about the legal basis for appointing a special counsel, not about a specific case.
The motive and timing of the Justice Department's decision to send the Nov. 13 letter to the House Judiciary Committee remains a source of intrigue. The department's stated reason was to respond to the committee's multiple requests for the appointment of a special counsel to look into Clinton and related matters.
But given that the department's response came months after the committee's written requests from July and September, some have wondered whether the department was responding to political pressure not from Republican lawmakers, but from the president.
As we've noted, on May 18, the day Mueller was tapped to investigate the Trump campaign, the president complained on Twitter that a special counsel wasn't appointed for Clinton or what Trump called "illegal acts" during President Barack Obama's administration.
"With all of the illegal acts that took place in the Clinton campaign & Obama Administration, there was never a special counsel appointed!" Trump tweeted May 18.
Trump again tweeted about Clinton hours after the investigation into his campaign's ties to Russia escalated dramatically when Mueller unsealed two indictments and a guilty plea against former campaign officials.
On Oct. 30, Mueller revealed a dozen felony charges, including money laundering, against former Trump campaign chairman Paul Manafort and campaign adviser Rick Gates. Hours later, Mueller unsealed a guilty plea by George Papadopoulos for misleading the FBI about his outreach efforts to Russian government officials, including an offer to broker a meeting between then-candidate Trump and Russian President Vladimir Putin.
"Sorry, but this is years ago, before Paul Manafort was part of the Trump campaign. But why aren't Crooked Hillary & the Dems the focus?????" Trump tweeted Oct. 30.
That same week, Trump bemoaned that his position as president prevents him from personally directing law enforcement to aggressively investigate Clinton.
"The saddest thing is that because I am the President of the United States, I am not supposed to be involved with the Justice Department. I'm not supposed to be involved with the FBI," Trump said in a Nov. 2 interview with conservative talk radio host Larry O'Connor.
"I'm not supposed to be doing the kind of things I would love to be doing and I am very frustrated by it," Trump continued. "I look at what's happening with the Justice Department, why aren't they going after Hillary Clinton with her emails and with her dossier and the kind of money? I don't know."
The following day, Nov. 3, Trump tweeted that the American public deserves to see his former political rival investigated, and called on law enforcement to "do what is right and proper."
"Everybody is asking why the Justice Department (and FBI) isn't looking into all of the dishonesty going on with Crooked Hillary & the Dems," Trump tweeted, before adding, "People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!"
Ten days later, the Justice Department sent a letter detailing its new focus on Clinton.
For her part, Clinton said the appointment of a special counsel against her would be "an abuse of power."
"I regret deeply that this appears to be the politicization of the Justice Department and our justice system," Clinton said in a Nov. 15 interview with Mother Jones. "This Uranium One story has been debunked countless times by members of the press, by independent experts. It is nothing but a false charge that the Trump administration is trying to drum up to avoid attention being drawn to them."
New developments related to Trump's campaign promise to appoint a special prosecutor against Clinton have unfolded since our last update in May, but their practical significance remains unclear.
The Justice Department has held open the possibility of appointing a special prosecutor in the future, though its top official has pushed back on calls to do so.
Trump has continued to browbeat the Justice Department and FBI to take a harder line on Clinton, at times when the investigation into his campaign intensifies, and despite his acknowledgement that a president should maintain an arm's length relationship from law enforcement.
The Justice Department is likely to continue facing political pressure from Congress and the president as federal prosecutors assess whether to further investigate Clinton. Despite this, it's far from guaranteed the department will ultimately deliver on Trump's promise. So for now, we're keeping this rating as Stalled.
Correction: A transcription error quoted Sessions as saying, "Looks like there's not enough basis to appoint a special counsel." Sessions' actual quote was " 'Looks like' is not enough basis to appoint a special counsel." We have updated our story to reflect this change, and included a Justice Department statement.
Department of Justice letter to House Judiciary Committee, Nov. 13, 2017
House Judiciary Committee hearing, Nov. 14, 2017
Republican members of House Judiciary Committee letter to Justice Department, July 27, 2017
Republican members of House Judiciary Committee letter to Justice Department, Sept. 26, 2017
Indictment, U.S. v. Paul J. Manafort, Jr. and Richard W. Gates, III
Statement of the Offense, U.S. v. George Papadopoulos
Tweet by Donald Trump, Nov. 3, 2017
Tweet by Donald Trump, Oct. 30, 2017
Tweet by Donald Trump, May 18, 2017
PolitiFact, "House presses Jeff Sessions on Trump campaign's Russia ties, Clinton special counsel," Nov. 14, 2017
Mother Jones, "Hillary Clinton on Trump's Special Counsel Threat: 'This Is Such an Abuse of Power,' " Nov. 15, 2017
Justice Department appoints special counsel — for Trump-Russia probe, not Clinton emails
On the campaign trail, President Donald Trump repeatedly promised to ask the Justice Department to appoint a special prosecutor to investigate Hillary Clinton's email use.
Well, on May 18, 2017, Deputy Attorney General Rod Rosenstein appointed a special counsel with authority to prosecute — and Trump didn't even have to ask for it.
That's because this special counsel, former FBI Director Robert Mueller, isn't looking into Clinton. He is instead charged with investigating Russia's interference in the election and any coordination there may have been with Trump's presidential campaign.
"This is the single greatest witch hunt of a politician in American history!" Trump tweeted May 18, the morning after Mueller's appointment.
He also complained on Twitter that a special counsel wasn't appointed for the Clinton scandal or what Trump called "illegal acts" during President Barack Obama's administration.
"With all of the illegal acts that took place in the Clinton campaign & Obama Administration, there was never a special counsel appointed!"
Mueller's appointment comes a week after Trump fired James Comey, Mueller's successor at the FBI.
The White House initially said Trump fired Comey because of how he handled the Clinton investigation, detailed in a May 9 memo by Rosenstein.
But two days later, Trump said he would have fired Comey regardless of Rosenstein's recommendation, and he had the Russia investigation on his mind when he made the decision.
This development doesn't warrant a change on the Trump-O-Meter. Trump hasn't backed away completely from his promise to ask Attorney General Jeff Sessions to appoint a special counsel to look into Clinton's email, and Trump still brings up Clinton's transgressions with some frequency. But it seems unlikely to happen any time soon.
This promise remains Stalled.
PolitiFact, "Who is Robert Mueller? New special counsel leading Russian investigation," May 17, 2017
Trump shows no interest, for now
President Donald Trump has made no move to seek a special prosecutor to investigate Hillary Clinton a month into his administration. Nor is there any indication that he will despite his pledge to voters.
The last words Trump offered on the subject came on Nov. 22, 2016, during an interview with reporters and editors at the New York Times.
Trump, when pressed about prosecuting Clinton over her use of a private email server while secretary of state, told reporters: "It's just not something that I feel very strongly about."
"My inclination would be for whatever power I have on the matter is to say let's go forward," Trump told the New York Times. This has been looked at for so long, ad nauseum."
The same day, White House adviser Kellyanne Conway went further in an interview on MSNBC, saying that Trump "doesn't wish to pursue these charges."
As we've noted before, it is not the job of the president to pursue the appointment of a special prosecutor. He can ask his attorney general to explore a topic but he can't order him to launch an investigation. Attorney General Jeff Sessions said during his confirmation hearing that he would recuse himself from any investigation of Clinton that might emerge.
Congress can appoint a special prosecutor but Republican leaders have shown no interest in exploring that in Clinton's case.
This promise sure looks on the path toward becoming broken, but we'll give Trump a little more time to see if anything materializes. For now, we rate this promise Stalled.
CBS News, Trump on appointing Clinton special prosecutor: "I'm going to think about it", Nov. 13, 2016
CNN, Trump flips, now opposes prosecution for Clinton, Nov. 22, 2016
Fox News, Under fire for conflicts, Trump backs off Clinton prosecution, Nov. 22, 2016
Trump promises to appoint a special prosecutor
In the last few months of the general election, crowds chanted "lock her up" at every single Donald Trump rally.
And Trump repeatedly told his supporters that he would oblige — promising to ask his attorney general to appoint a special prosecutor to investigate Hillary Clinton and the private email server she used as secretary of state.
"I will ask, to appoint a special prosecutor," he said at an October 2016 rally. "We have to investigate Hillary Clinton, and we have to investigate the investigation."
"She has to go to jail," he said a couple days later.
If he were to carry this promise forward, it would be the first time a president tried to jail his former opponent. However, Trump seems to have backed away from it already.
WHY HE'S PROMISING IT
The FBI already conducted a year-long investigation into Clinton's private email server and whether Clinton or her staff mishandled classified information. Agents concluded that there was not enough evidence to bring criminal charges.
"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information," said FBI Director James Comey in a July 2016 press conference.
Trump and other Republicans lambasted Comey over the FBI's decision — saying Clinton committed a series of crimes, the investigators made a mistake, and the justice system is trying to protect her.
WHAT NEEDS TO HAPPEN
Trump would have to ask his attorney general to consider appointing a non-government lawyer to serve as a special prosecutor. It is not within a president's authority to order the attorney general to pursue any particular line of inquiry.
Trump nominated Sen. Jeff Sessions, R-Ala., for attorney general. Sessions has been a vocal critic of the FBI's handling of the Clinton email investigation. However, Sessions said during his Senate confirmation hearing Jan. 10 that he would recuse himself if the Clinton email investigation were to move forward.
WHAT'S STANDING IN HIS WAY
There are quite a few signs Trump won't direct his attorney general to seek criminal charges against Clinton.
First of all, it is a norm of American democracy that leaders do not try jail their political opponents. Leading legal experts have said that if the Trump administration were to prosecute Clinton, it would be unprecedented.
"This country doesn't punish its political enemies," Sessions said at his confirmation hearing.
And there's Trump's own feelings on the subject. Despite egging on the "lock her up" chants, he hinted in the weeks following his Nov. 8 win that he would let the whole thing go.
"I don't want to hurt the Clintons, I really don't," Trump told the New York Times in November. "She went through a lot and suffered greatly in many different ways, and I am not looking to hurt them at all. The campaign was vicious."