Law professor weighs in on Trump’s ‘special prosecutor’ statement

Posted at 10:18 PM, Oct 10, 2016
and last updated 2016-10-10 22:29:50-04

GRAND RAPIDS, Mich.-- Harsh words were exchanged Sunday night between Donald Trump and Hillary Clinton as they faced off for the second time ahead of the election.

A lot of focus was on the tape released Friday featuring vulgar comments Trump made about women. When asked about that, the Republican nominee did apologize, then switched to the email scandal surrounding Hillary Clinton, saying if he were in the White House, he'd have her arrested.

As president, is this something he would be able to do? Technically, not really, but he might not need to in the first place.

"If I win, I am going to instruct my Attorney General to get a special prosecutor to look into your situation," said Trump.

Trump told his supporters the same thing at a rally in must-win Pennsylvania Monday evening.

"Special prosecutor, here we come, right?" said Trump.

But a constitutional law professor at Western Michigan University-Cooley Law school explains that's not the president's job.

"Historically under our special prosecutor law, the Attorney General, not the President, can appoint a special prosecutor if the Attorney General comes to the conclusion that it's in our country's best interest or if there's a conflict of interest that prevents the Department of Justice and the existing United States Attorney General from investigating a particular crime," said professor Devin Schindler.

This would normally only happen if either the President or someone in his cabinet was under investigation because the Attorney General works for the President.

"Where there's no conflict of interest, there's really no reason to appoint a special prosecutor," said Schindler.

Because Trump is likely to not appoint Hillary Clinton to any positions, there would be no conflict of interest requiring the Attorney General to hand off the investigation, but Schindler says a second investigation of Clinton's emails by the Attorney General would amount to pure politics.

"The Attorney General doesn't exist for political payback," said Schindler. "The Attorney General exists to enforce the laws of the United States of America."

While the Attorney General could refuse to do another investigation, Schindler says Trump would likely only appoint someone who would agree to do the investigation again. The Attorney General could appoint a prosecutor to do the investigation, but the title of special prosecutor would be just a title.

"I can't imagine a President Trump, if he's serious about this, appointing someone who would disregard his order," said Schindler.

Schindler also discussed the importance of Supreme Court Justices and how the next president will likely have an opportunity to appoint three or four of them.

While the climate of this presidential election has been drastically different than previous years, Schindler hopes voters will factor in the Supreme Court Justice angle because the president is only the president for four to eight years, but Supreme Court Justices could be around for 20 or 30.