Lock Him Up! (A Dorf on Law Classic)

Note to readers: It is Good Friday, which I suppose I could offer as my excuse to run a Dorf on Law classic today.  But given that I am an atheist, that would be silly.  The fact is that I am severely jet-lagged, and the creative juices are not flowing.  So a classic it is.

As luck would have it, today's classic is almost eerily relevant to recent events -- not just the content of the column itself (indicting Donald Trump) but, tragically, with its lead-in referring to recent mass shootings.  The familiarity of it all is beyond heartbreaking.

In any event, I offer below my Dorf on Law column from August 6, 2019.


Lock Him Up!  

by Neil H. Buchanan

[Note to readers: The two mass shootings over the weekend continue -- quite rightly -- to consume people's attention.  I wish that I could think of something to add to the discussion, but for now, my thoughts are jumbled and my feelings are raw.  I have thus decided to write today on a different topic, one that is important but less immediate and less emotional.]

One of the most notoriously awful aspects of Donald Trump's campaign rallies in 2016 was the howling chants of "Lock her up!"  Indeed, the people who thrill to Trump's brand of ugliness so much that they decide to attend his speeches in person clearly reveled in those chants, relishing the two-minutes-hate pulsing thrill of imagining the hated Hillary Clinton being led off in an orange jumpsuit.

Reportedly, those chants continue to be part of the audience-participation show that is a 2019 Trump rally.  And we can certainly imagine that something like this will become part of the Trump cult's response to whomever is the Democratic nominee next year.  After all, they started the "Send her back!" baying when Trump decided to attack U.S. Rep. Ilhan Omar.  Name a possible Democratic nominee, any of them, and tell me that the Trump crowds will not do something like that again.  If one is honest, it is impossible to deny that this is inevitable.

Does it matter what the content of the chant is?  And would it make anti-Trump voters equivalently awful if they were to start shouting "Lock him up!" at campaign events?  I think that the answers to those questions are yes and no, respectively, but they are certainly interesting questions that deserve some respectful consideration.  What do you do when an unindicted criminal is in the White House?

Imagine a September 2020 rally at which Kamala Harris says that Trump should be in jail.  Perhaps the crowd responds excitedly by chanting "Lock him up!"  Maybe not.  My principal focus is not on the audience but on the speaker, because the message starts at the top, and crowds respond to their candidates in predictable ways.  Before getting there, however, we need to think about an important distinction.

There is an fundamental difference between the calls to lock up Hillary Clinton and the calls to send Ilhan Omar back to Somalia (even though she is a U.S. citizen).  This in no way excuses the latter, but the send-her-back idea is -- in one way only -- less concerning than lock-her-up, because Trump and his crowd are making a statement about Omar that is nothing more nor less than a terribly immoral (and inaccurate) statement about who counts as an American.  The lock-her-up idea, on the other hand, is about using the power of the state to take away a person's freedom.

To be sure, one could say that the anti-Omar chant is literally a call to use the power of the state to deprive someone of her rights as a U.S. citizen and to take away her freedom to travel (and exist) in her own country.  Taken literally, both chants are calls for an abuse of power without due process.

Even so, it is easier to interpret the anti-Omar yelling as a lazy expression of hatred rather than a specific call for action.  Although many bigots would like to go through the process of deporting certain American citizens, the chants to send her back are more along the lines of "Tell her to shut up and love Trump!" or merely the old, stupid standby: "America, love it or leave it!"

Perhaps that very partial exculpation could be applied to the lock-her-up cheers as well, but it feels different, because the idea is quite explicitly that a political opponent should actually be sent to jail for ... for what, exactly?  After all, the scary starting point of that whole process is that neither Trump nor his followers ever said exactly what is was that Clinton had done to deserve being locked up.  Was it the Vince Foster murder myth?  Was it the email server thing that the FBI investigated thoroughly and determined was non-indictable?  The idea was just that she was guilty of something -- of many somethings, no doubt -- and so we can skip the trial and go right to tossing her in the clink.

Which brings us back to that future Harris rally.  I chose Harris specifically because, for all of my admiration for her, I continue to be very troubled by reports of Harris's abuse of power as a prosecutor and state attorney general, in particular what appear to be instances in which she knowingly kept innocent men in jail for the sake of her career.

To be clear, this apparently is a shamefully common thing in prosecutors' offices, so Harris is unfortunately not unique; but she is running for president.

I have one very strong small-c conservative instinct in me, and that is that there is almost nothing scarier than a government that deliberately jails innocent people.  If anyone other than the government does you wrong (including kidnapping you and imprisoning you), you have the hope that the good guys will find out about it and make it stop.  If the supposedly good guys are the ones who are keeping you locked up, what hope is there?  It is chilling.

In my hypothetical situation, then, it is not just any candidate calling for Trump to be sent to prison.  It is the candidate who has allegedly kept people in prison under false pretenses.  If there is a problem with a candidate calling for an opponent's imprisonment, it would feel especially egregious coming from Harris.

(As an aside, I hasten to add that if Harris is the eventual nominee, I will enthusiastically support her against Trump.  Harris exercised very bad judgment on specific issues.  Trump, on the other hand, insists on exercising bad -- or no -- judgment in everything he does.  This is not a close call.)

How should we feel if candidate Harris says something like this: "You know, Donald Trump ran for president by declaring the his opponent should go to prison, but it is Trump who is the true criminal.  He is the one who deserves to go to jail!"  Is that bad, whether or not it leads to crowds chanting for Trump's imprisonment?

Again, an anti-Trump candidate or crowd shouting something else -- almost anything else -- would not give me pause at all as a moral matter.  If they want to jokingly yell that he should be sent back to Germany or England, fine.  If they want to call him Agent Orange or mock his hair, you will not hear me complain.  I might not think that those things are mature or even electorally smart, but there is nothing particularly worrying about that kind of consciously adolescent banter.

What is potentially problematic, then, is that Harris and possibly her supporters will do what Trump and his people do, which is to say that their political opponents should be sent to prison.

I nonetheless think that there is an important difference, which is that Donald Trump actually has committed crimes that could and should result in prison sentences.  How do we know this?  How could we not?  He brags about them, and his supposed exoneration by the Mueller report was actually a full-on multi-count indictment that did not include the actual indictment -- but only because the special prosecutor said that he could not indict a sitting president, not because there was nothing to indict.

Even so, one might object that Harris would be skipping over some important steps, saying that Trump should go to prison even though he, like all Americans (including Clinton and Omar), enjoys the presumption of innocence in a criminal proceeding.  If so, then inciting her crowd to mock Trump by coopting his fervent followers' most-loved chant might rightly be seen as a call for lawlessness.

In the end, however, I think that such concerns are misplaced, even though those concerns can arise from a very good place.  For Harris (or any other candidate) to say that Trump should be locked up would not be the same as Trump saying that Clinton should be locked up, because Harris/others would be basing that statement on known facts and what would otherwise be uncontroversial legal conclusions.

In other words, Trump was a tinpot dictator saying: "She displeases me.  Take her away!"  Harris would be saying: "He obstructed justice multiple times and violated campaign finances laws, so he should go to jail."

Harris's statement could still arguably be a step too far, because she might be seen as pre-judging the outcome.  That, however, is what people do all the time.  The qualifiers -- if he really did it, if a jury of his peers finds him guilty after due process is provided -- are implicit in a way that simply is not present in the ravings of Trump and his supporters.  Indeed, they were saying that Clinton should go to jail even though she had already been investigated and cleared of criminal charges.  They wanted to say that they knew better, simply because they hate Clinton so fiercely.

Perhaps, however, Harris should feel obligated to rephrase her statement from "... so he should go to jail" to "... so he should be indicted, prosecuted, and jailed if a jury finds him guilty beyond a reasonable doubt."  Such a statement would be more lawyerly, but does it do anything useful?  Whatever else one might think about any Democratic candidate, there is nothing to suggest that any of them would in fact skip over the middle steps after becoming president.  It is simply a given that a call to lock him up would be a request to do so through the appropriate procedures.

Trump, by contrast, calls for mob rule and the violation of the rights of the accused.  He has told police officers not to be careful about arrestees being injured when pushing them into a squad car.  He has told his crowds that they should attack protesters and promised (falsely, but a Trump promise is per se a false promise) to pay for the legal fees of people who do his bidding.  He abuses the legal process to make civil cases go away.  He was happy about a Republican congressman physically assaulting a reporter in Montana.

Despite all of that, it might still be said that this is all the more reason for Harris or anyone else to be completely clear that they are not calling for frontier justice.  Even if it should readily be understood and presumed that "... and he should go to jail" for his many crimes is a call for full legal process (and a prediction of the outcome of that process), must we now be extraordinarily careful about even possibly sounding like Judge Roy Bean?

I suppose that it is important to be as clear as possible at all times, but this strikes me as the kind of self-imposed requirement that would never satisfy anyone who wanted to take offense.  Adding qualifiers and clarifications will still leave out something.  Moreover, just as people deliberately ignored what Hillary Clinton actually said when, to take two examples, she (1) uttered the phrase "basket of deplorables" and (2) she said that "[w]e're going to put a lot of coal miners and coal companies out of business," all of the added words about due process will be ignored by those who opportunistically want to create false equivalence.

Does that mean that no Democrat should even talk about Trump's crimes, then?  Or maybe Kamala Harris should take extra care?  If even the most well-phrased and appropriately qualified statement is surely going to be viewed by some as proof that Democrats are just as lawless as Trump, should they not go there at all?

The answer to that question has to be no, because the same unfair reading surely awaits every statement from a Democratic candidate.  No candidate in her or his right mind could possibly say: "If I trim my sails about Trump's crimes, then I'll be fine."  Everything will be twisted and distorted, so there is no safe path.

Based on everything we know, Donald Trump has committed multiple crimes, both before and after the 2016 election.  If the facts as we know them are true, and if he is properly prosecuted, and if he is found guilty by a duly-empaneled jury, then he should go to jail.  And short-handing that statement would not be proof that a speaker was just as bad as Trump.