• Home
  • Latest
  • Fortune 500
  • Finance
  • Tech
  • Leadership
  • Lifestyle
  • Rankings
  • Multimedia

Trendingnow

1

When SpaceX starts trading, some 'shareholders' will discover they own nothing at all

2

Corporate America has been draining the world's water. Matt Damon's new campaign calls on Gap, Starbucks, and Amazon to help give it back

3

Current price of oil as of June 12, 2026

1

When SpaceX starts trading, some 'shareholders' will discover they own nothing at all

2

Corporate America has been draining the world's water. Matt Damon's new campaign calls on Gap, Starbucks, and Amazon to help give it back

3

Current price of oil as of June 12, 2026
LeadershipDonald Trump

Could a President Donald Trump Prosecute Hillary Clinton?

By
Roger Parloff
Roger Parloff
Down Arrow Button Icon
By
Roger Parloff
Roger Parloff
Down Arrow Button Icon
October 10, 2016, 1:29 PM ET

In a presidential campaign featuring many firsts, one of the most startling came Sunday night when Republican nominee Donald Trump, to scattered cheers from the audience, pledged to have the Democratic nominee investigated criminally, should he prevail in November.

Specifically, in reference to her actions relating to her private email server, he said: “And I’ll tell you what. I didn’t think I’d say this, but I’m going to say it, and I hate to say it. But if I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we’re going to have a special prosecutor.”

When Hillary Clinton replied that it was “awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country,” Trump quickly added, “Because you’d be in jail.”

Trump’s campaign manager Kellyanne Conway tried to downplay Trump’s threat, later saying it was just “a quip.” However, some prominent lawyers and legal scholars took umbrage at the threat and expressed alarm. Harvard Law professor Laurence Tribe told Fortune that even threatening such a thing was “incompatible with the survival of a stable constitutional republic,” while carrying out such a threat would constitute an “impeachable offense.”

Eric Holder, former U.S. Attorney General in the Obama Administration, immediately tweeted that Trump’s comment rendered him “unfit” for office.

So @realDonaldTrump will ORDER his AG to take certain actions-When Nixon tried that his AG courageously resigned. Trump is dangerous/unfit

— Eric Holder (@EricHolder) October 10, 2016

Fortune reached out to all the former U.S. attorneys general that we could locate (including Holder), as well as several other prominent legal authorities and presidential historians, to get their views. Was what candidate Trump proposed legal? Was there precedent for it? Was it good policy? Here are the answers we’ve received so far.

Laurence Tribe, Professor of Constitutional Law, Harvard Law School

(Via email:) “Under the laws and Justice Department regulations governing federal prosecution, a President Trump would not have legal authority to direct the Attorney General to appoint a special prosecutor to ‘look into’ Hillary Clinton’s email situation or the Clinton Foundation or anything else. That’s not within a President’s power.

The only precedents for the kind of vow Trump made in last night’s debate are to be found in dictatorships and banana republics, not the United States. The closest parallel may be what [Viktor] Yanukovych (a former Paul Manafort client) did to [Yulia] Tymoshenko in Ukraine.

Making threats or vows to use a nation’s criminal justice system against one’s vanquished political opponent is worse than terrible policy: it’s incompatible with the survival of a stable constitutional republic and, under our Constitution, would represent an abuse of power so grave that it would be an impeachable offense—one reminiscent of Richard Nixon’s deliberate use of the IRS to go after his political enemies.”

[In a second email, Tribe added that] “some of the political leaders who’ve jailed their political opponents [in the past] have been Hugo Chávez, Recep Erdoğan, Robert Mugabe, Manuel Noriega, Augusto Pinochet and, of course, Vladimir Putin.”

Judge Michael Mukasey (former U.S. Attorney General, 2007-2009, under George W. Bush; U.S. District Judge, 1987-2006, appointed by Ronald Reagan; partner, Debevoise & Plimpton)

Asked in a telephone interview whether Trump could order that a special prosecutor be appointed, “No, that’s not within his powers. I think he said, ‘I would direct my attorney general’ to exercise the power to appoint a special counsel. “The AG’s proper answer would then be, ‘I’ll think about it.’ Or ‘I’ll review the facts,'” Mukasey said. [His point is that the attorney general must exercise independent discretion—not merely carry out the President’s whims.]

Were there any precedents for such an action? “Not as far as I know. The only thing close, ironically, is Eric Holder having said during the 2008 campaign, speaking of [C.I.A. officers’ treatment of terrorism detainees], ‘There has to be a reckoning.” Holder, Mukasey said, though a private citizen at the time, was obviously a likely nominee to head the Justice Department in the event then-candidate Barack Obama won, as he did.

When Holder became A.G., he did, in fact, open an inquiry into the conduct of several C.I.A. officers, according to Mukasey, although the Justice Department had already opened and closed investigations into them. “Which I thought was stunning,” he adds. The new inquiries were ultimately closed without prosecutions also, however. [Holder did not respond to Fortune‘s inquiry seeking comment.]

Would it be wise policy for Trump to reopen an inquiry into Clinton’s emails? “I would think you wouldn’t want to create the impression that this is a banana republic,” Mukasey said. “But that’s not to say it’s inappropriate to reinvestigate. There are lots of serious questions about it.”

“An easy way to moot all this,” he added, “is if Trump were elected, then President Obama could simply pardon her.”

Jim Jacobs, professor at New York University School of Law, specializing in criminal law and procedure

(In a phone interview he said:) “That’s very contrary to the way the Justice Department operates. It is essential that the Department be apolitical with respect to its choice of law enforcement targets and to its exercise of prosecutorial discretion. And very improper if the president were to be making phone calls to the attorney general with respect to a particular target of investigation. I don’t know of any president who has done that. If it had been revealed to have happened in the past it would have been a scandal.

The same with respect to U.S. Attorneys [the top federal prosecutors around the country]. They wouldn’t expect to be called by the White House, and be told by the president, ‘I want you to investigate someone.’ I think that would be grounds for resignation. That would call into question the independence of the law enforcement wing, and put a grave cloud over it.”

Ted Olson, former Solicitor General of the United States, under George W. Bush; partner, Gibson Dunn & Crutcher

(Per Email:) “Justice Department regulations allow the Attorney General the discretion to appoint an independent counsel/prosecutor. . . . I don’t recall such a pre-election commitment, but there well could have been. I’ll stay out of the policy debate.”

Alan Dershowitz, Harvard Law School professor, emeritus, of constitutional and criminal law

“The president is not supposed to influence prosecutorial policies by the Justice Department, which should be independent. It is bad policy to mix politics with law enforcement.”

Dick Thornburgh, former U.S. Attorney General from 1988-1991 under Ronald Reagan and George H.W. Bush; partner at K&L Gates

“The attorney general would clearly have the power to proceed. Whether it would be wise or not is another matter. . . .

The president can instruct the attorney general to do anything, as we learned from Watergate [referring to the instance in which President Richard Nixon ordered attorney general Elliott Richardson to fire special prosecutor Archibald Cox, and Richardson resigned rather than do so]. . . .

There’s very little precedent for a winning candidate for presidency to seek some sort of criminal prosecution as retribution against a recent opponent. I’ve racked my brain. . . .

As a matter of policy, an attorney general might refuse to carry out such a prosecution. . . .

One troubling aspect of this is that one AG has already ostensibly reviewed the record and found no basis for bringing a prosecution. But that doesn’t prevent a successor from reviewing it.”

(We will be updating this post as additional comments arrive. If you have expertise in this area, please write roger_parloff@fortune.com and we will consider including your comments as well.)

About the Author
By Roger Parloff
See full bioRight Arrow Button Icon

Latest in Leadership

Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025

Most Popular

Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Fortune Secondary Logo
Rankings
  • 100 Best Companies
  • Fortune 500
  • Global 500
  • Fortune 500 Europe
  • Most Powerful Women
  • World's Most Admired Companies
  • See All Rankings
  • Lists Calendar
Sections
  • Finance
  • Fortune Crypto
  • Features
  • Leadership
  • Health
  • Commentary
  • Success
  • Retail
  • Mpw
  • Tech
  • Lifestyle
  • CEO Initiative
  • Asia
  • Politics
  • Conferences
  • Europe
  • Newsletters
  • Personal Finance
  • Environment
  • Magazine
  • Education
Customer Support
  • Frequently Asked Questions
  • Customer Service Portal
  • Privacy Policy
  • Terms Of Use
  • Single Issues For Purchase
  • International Print
Commercial Services
  • Advertising
  • Fortune Brand Studio
  • Fortune Analytics
  • Fortune Conferences
  • Business Development
  • Group Subscriptions
About Us
  • About Us
  • Press Center
  • Work At Fortune
  • Terms And Conditions
  • Site Map
  • About Us
  • Press Center
  • Work At Fortune
  • Terms And Conditions
  • Site Map
  • Facebook icon
  • Twitter icon
  • LinkedIn icon
  • Instagram icon
  • Pinterest icon

Latest in Leadership

AI can be a ‘secret sauce’ or a way of ‘democratizing mediocrity’—Here’s how business leaders are getting the best of the technology
C-SuiteBrainstorm Tech
AI can be a ‘secret sauce’ or a way of ‘democratizing mediocrity’—Here’s how business leaders are getting the best of the technology
By Amanda GerutJune 12, 2026
6 hours ago
Sven Gerjets, chief technology officer at Gap, speaks on stage on a panel at Fortune Brainstorm Tech 2026.
Future of WorkBrainstorm Tech
Why companies are treating AI as a strategic partner rather than a passive technology, and how to avoid an ‘AI hangover’
By Sebastian HerreraJune 12, 2026
10 hours ago
Elon Musk stands behind the Nasdaq opening bell and in front of a "SpaceX" background.
Future of WorkElon Musk
Despite his new trillionaire status, Elon Musk says money ‘will stop being relevant’ in the future because of AI
By Sasha RogelbergJune 12, 2026
11 hours ago
arms
HealthPsychology
You probably think you’re a really open-minded person, but the real thing raises your death anxiety
By Daryl Van Tongeren and The ConversationJune 12, 2026
12 hours ago
AI was supposed to cut health care costs. One of its first jobs was charging you more, PwC report shows
AIHealth Care Service
AI was supposed to cut health care costs. One of its first jobs was charging you more, PwC report shows
By Whizy Kim and Tech BrewJune 12, 2026
12 hours ago
Man in a blue shirt gesturing
AIBrainstorm Tech
AOL cofounder Steve Case on AI— major upside, real risk, and ‘probably a net negative’ for jobs
By Amanda GerutJune 12, 2026
12 hours ago

Most Popular

When SpaceX starts trading, some 'shareholders' will discover they own nothing at all
Investing
When SpaceX starts trading, some 'shareholders' will discover they own nothing at all
By Jim EdwardsJune 12, 2026
20 hours ago
Corporate America has been draining the world's water. Matt Damon's new campaign calls on Gap, Starbucks, and Amazon to help give it back
Environment
Corporate America has been draining the world's water. Matt Damon's new campaign calls on Gap, Starbucks, and Amazon to help give it back
By Catherina GioinoJune 9, 2026
4 days ago
Current price of oil as of June 12, 2026
Personal Finance
Current price of oil as of June 12, 2026
By Joseph HostetlerJune 12, 2026
18 hours ago
American taxpayers have spent $33 billion on sports stadiums. They got fewer seats—and higher prices
Success
American taxpayers have spent $33 billion on sports stadiums. They got fewer seats—and higher prices
By Catherina GioinoJune 11, 2026
1 day ago
Analysts expected oil to surge above $200 but China has quietly kept prices half of that—and can’t for much longer
Energy
Analysts expected oil to surge above $200 but China has quietly kept prices half of that—and can’t for much longer
By Sasha RogelbergJune 10, 2026
3 days ago
Current price of oil as of June 11, 2026
Personal Finance
Current price of oil as of June 11, 2026
By Joseph HostetlerJune 11, 2026
2 days ago

© 2026 Fortune Media IP Limited. All Rights Reserved. Use of this site constitutes acceptance of our Terms of Use and Privacy Policy | CA Notice at Collection and Privacy Notice | Do Not Sell/Share My Personal Information
FORTUNE is a trademark of Fortune Media IP Limited, registered in the U.S. and other countries. FORTUNE may receive compensation for some links to products and services on this website. Offers may be subject to change without notice.