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Calls To Investigate Clinton Pose A Challenge To U.S. Political Norms

Aug 3, 2017
Originally published on August 3, 2017 8:45 am

As Justice Department special counsel Robert Mueller investigates alleged Russian ties to the Trump presidential campaign, the White House and some Republicans in Congress are calling for a second investigation.

The proposed target is a retired woman living in a small town in New York's Hudson Valley: Hillary Clinton.

Washington University law professor Kathleen Clark, who focuses on legal and governmental ethics, says these calls for an investigation of Clinton — long after her political defeat — fall far outside American political norms.

Traditionally, losing candidates are left alone after the election.

With this effort to pursue Clinton, "I'd say that the norms are under significant pressure," Clark said.

The demands to investigate go back to the heat of the 2016 race, when GOP candidate Donald Trump routinely referred to his Democratic rival as "crooked Hillary."

On the campaign trail, he made a prediction: "She's likely to be under investigation for criminality for a very, very long time to come."

During his campaign events, crowds chanted, "Lock her up!" The idea was that Clinton may have violated some laws related to her use of a private email server while she was U.S. secretary of state. (Just before Election Day last year, the FBI reaffirmed its decision not to pursue charges against Clinton over the email server.)

After Trump won, he told The New York Times that he didn't want to hurt the Clintons.

But as the weeks and months went by, more and more questions were raised about the Trump campaign's possible connections to Russian operatives and oligarchs.

As Mueller's investigation of those allegations has intensified, Trump has stepped up his tweeting about what he has called "Hillary Clinton crimes."

And White House press secretary Sarah Sanders told reporters this week that investigators have been looking at the wrong issue as they probe a 2016 meeting involving Donald Trump Jr., Trump son-in-law Jared Kushner, then-Trump campaign chairman Paul Manafort and a lawyer who Trump Jr. had been told would have information from Russia that would damage the Clinton campaign.

"If you want to talk further about a relationship with Russia, look no further than the Clintons, as we've said time and time again," Sanders said.

The White House message is reverberating on Capitol Hill. Most of the Republicans on the House Judiciary Committee last week signed a letter asking Attorney General Jeff Sessions to name another special counsel — this one to investigate Clinton.

The committee's Republicans are united in another bid for Justice Department documents on Clinton and a list of other former officials, including Obama Attorney General Loretta Lynch, former FBI Director James Comey and, as the committee put it, "possible Hillary Clinton co-conspirators."

Rep. Matt Gaetz, R-Fla., said during the committee debate last week, "If it's in the public interest to investigate the Trump administration, it is most certainly in the public interest to investigate the real crimes by the real criminals."

But the calls for law enforcement probes of a defeated candidate may be unprecedented.

"I can't really think of any previous experience to compare it to," said Daniel Feller, a presidential historian at the University of Tennessee. As a specialist in Andrew Jackson's presidency, he knows a lot about partisan conflicts in American politics.

It's rare to see candidates re-fighting an election, he said, but this is particularly odd because "it's the winners who want to re-fight it."

Clark, the law professor, said of the calls for a Clinton investigation, "I think it puts the democracy at risk." She added, "It's improper to use the investigative authorities of the state as a raw political tool."

She noted that President Richard Nixon tried to get the FBI and Internal Revenue Service to investigate his political rivals. The House Judiciary Committee put that abuse of power in the articles of impeachment against Nixon.

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Two members of the Senate judiciary committee have proposed legislation to protect special counsel Robert Mueller, who was appointed by the Justice Department to investigate Russian meddling in the 2016 election. But some Republicans in Congress want a separate investigation, and their target is Hillary Clinton. NPR's Peter Overby reports.

PETER OVERBY, BYLINE: During the campaign, Trump called his rival crooked Hillary. He made a prediction.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: She's likely to be under investigation for criminality for a very, very long time to come.

OVERBY: There was the chanting.

(SOUNDBITE OF ARCHIVED RECORDING)

MICHAEL FLYNN: That's right, lock her up.

OVERBY: That was retired General Michael Flynn leading the chant at the Republican convention. After Trump won, he told The New York Times he didn't want to hurt the Clintons. But then came questions about connections between his campaign, his family even, and Russian operatives and oligarchs. Since then, Trump has tweeted about, quote, "Hillary Clinton crimes." And White House Press Secretary Sarah Sanders told reporters this week they were looking at the wrong issue.

(SOUNDBITE OF ARCHIVED RECORDING)

SARAH HUCKABEE SANDERS: If you want to talk further about a relationship with Russia, look no further than the Clintons.

OVERBY: The message is reverberating on Capitol Hill. Most Republican members of the House judiciary committee are calling for another special counsel to investigate Clinton. They also want to get Justice Department documents on Clinton and a list of other former officials. Among them, Obama Attorney General Loretta Lynch, former FBI Director James Comey, and, as the committee put it, possible Hillary Clinton co-conspirators. Florida Republican Matt Gaetz spoke during the committee meeting last week.

(SOUNDBITE OF ARCHIVED RECORDING)

MATT GAETZ: If it's in the public interest to investigate the Trump administration, it is most certainly in the public interest to investigate the real crimes by the real criminals.

OVERBY: Again, what's startling is that they're calling for law enforcement probes of the candidate Trump already defeated.

DANIEL FELLER: I can't really think of any previous experience to compare it to.

OVERBY: Daniel Feller is a presidential historian at the University of Tennessee. As a specialist in Andrew Jackson's presidency, he knows something about partisan conflicts. He said the weird thing here isn't that last year's election is still being refought...

FELLER: But it's the winners who want to refight it.

KATHLEEN CLARK: I think it puts the democracy at risk.

OVERBY: Law professor Kathleen Clark focuses on legal and governmental ethics. Speaking over Skype, she said there are norms of how governments and officials are expected to act in a democracy.

CLARK: I'd say that the norms are under significant pressure.

OVERBY: One example - the norm of leaving election losers alone afterwards. Another one...

CLARK: It's improper to use the investigative authorities of the state as a raw political tool.

OVERBY: This norm has been under pressure before. President Richard Nixon tried to sic the FBI and Internal Revenue Service on his political rivals. The House judiciary committee put it in the articles of impeachment against Nixon. Peter Overby, NPR News, Washington.

(SOUNDBITE OF NOMO'S "SEAMS") Transcript provided by NPR, Copyright NPR.