“A contempt of the laws is the high road to anarchy.”
— Alexander Hamilton
Hillary Clinton’s email scandal and the Clinton Foundation scandal are back in the news, as they are likely to be for years to come. At his confirmation hearing, Attorney General-designate Jeff Sessions said he would recuse himself from all investigations involving the Clintons.
Last November, President Donald Trump said that his preference was for no further investigation of Hillary Clinton or the Clinton Foundation. A decision (which does not seem to have been made yet) not to continue any investigation raises at least three concerns:
1). Deciding whether to prosecute someone isn’t normally the president’s decision to make. It’s the job of “the system.”
“The system” may sound amorphous, but in fact “the system” is what we call “the rule of law.” That rule is not just an arcane concept that interests lawyers and public policy mavens. The rule of law is probably the single most important governing concept we have — far more important than democracy. The rule of law elevates the weakest citizen to the level of the most powerful.
In this case, the rule of law would see the FBI and the Justice Department make the determinations whether or not to continue investigating and to prosecute. Nevertheless, the attorney general can always exercise prosecutorial discretion and decide to drop an investigation without necessarily traducing the rule of law. And if the AG (in this case the deputy AG, Mr. Sessions having recused himself) can make that decision, so can his boss, the president.