WASHINGTON — Even as President-elect Donald Trump vows to unify a divided nation, he faces a momentous decision over whether to make good on his oft-repeated campaign pledge to have a special prosecutor “lock up” Hillary Clinton.
That decision will signal whether Trump intends to look ahead and “bind the wounds of division,” as he pledged to do in his acceptance speech early Wednesday, or look back and settle political scores, as he often seemed inclined to do during his campaign.
The possibility of a new investigation into Clinton’s email server has forced the White House to field questions about whether President Barack Obama might offer Clinton a pardon to insulate her from criminal charges.
Josh Earnest, the White House spokesman, said last week that he would not discuss Obama’s thinking on any particular case for clemency, but he sent a strong signal that it would be inappropriate for Trump to revive the Clinton investigation.
He told reporters that the country had a long tradition of political leaders “not using the criminal justice system to exact political revenge.” Earnest said that “in fact, we go to great lengths to insulate our criminal justice system from partisan politics,” adding that “the president is hopeful that it will continue.”
Chants of “lock her up” became a frequent rallying cry at Trump campaign events, and Trump told Clinton at the second presidential debate that if elected, he would instruct his attorney general “to get a special prosecutor to look into your situation because there has never been so many lies, so much deception.”
If he were president, he told her, “you’d be in jail.” That threat unnerved both Republican and Democratic legal analysts.
The decision he faces echoes one confronted by Obama and his first attorney general, Eric H. Holder Jr., over whether to investigate Bush administration officials for extreme interrogation tactics against terrorism suspects that the Obama administration later deemed to be torture.
While Holder said the country was owed “a reckoning” for torture carried out after the Sept. 11 attacks, the Obama administration ultimately did not conduct a broad criminal investigation. Obama declared that “we need to look forward, as opposed to looking backward.”
The FBI has concluded two times, including after a surprise review that began just 11 days before the election, that Clinton should not face criminal prosecution over her handling of her private email server. Clinton on Saturday blamed her loss in part on the FBI’s last-minute intervention.
Even so, legal analysts said there was little doubt that as president, Trump would have the power to direct his attorney general — Rudolph W. Giuliani has been frequently mentioned for the job — to appoint an outside special counsel to reinvestigate the matter in light of new evidence that may have developed.
In an interview with The Wall Street Journal that was published Friday, Trump deflected a question about naming a special prosecutor.
“It’s not something I’ve given a lot of thought, because I want to solve health care, jobs, border control, tax reform,” he said.
But his top aides have left the door open to such a move.
In an appearance Thursday on Fox News, Giuliani — a top adviser to Trump on legal and national security issues — said he did not think Obama should pardon Clinton, and he raised the prospect that the Trump administration could investigate not only the private email server, but also the Clinton Foundation, the family charity. Several FBI offices are known to have examined questions about the charity’s acceptance of gifts from foreign leaders, but those inquiries appear to have been paused.
Guiliani said that during the campaign, Trump had “talked about an independent counsel doing it, who would be not a Republican, not a Democrat, somebody free of any political question.”
The decision about appointing a special prosecutor is a “tough” one, Giuliani said in a separate appearance on CNN. “It’s been a tradition in our politics to put things behind us,” he said. “On the other hand, you have to look at, how bad was it?”
Kellyanne Conway, Trump’s campaign manager, has also not ruled out a special counsel investigation, saying a decision would come “all in good time.”
But Gov. Chris Christie of New Jersey, who is also a Trump adviser, seemed to discourage talk of prosecuting Clinton when he was asked about it Thursday on NBC’s “Today” show. “People get to speak through their vote, and they voted for Donald Trump to be the president of the United States,” Christie said. “It is now his job, and I am confident he will bring the country together.”
However, Christie’s influence in the Trump camp appears to be waning. A day after that interview, he was demoted from chief of the Trump transition team in favor of Vice President-elect Mike Pence. Christie was made a vice chairman.
Democrats say the lingering threats to “lock up” Clinton are alarming. They say they hope that Trump, who has shown signs of backing away from other campaign pledges, most notably his vow to repeal the Affordable Care Act entirely, will do the same when it comes to threats of prosecuting his defeated rival.
“It would be very, very unwise, in my view, for a new attorney general, acting presumably on the orders of the president, to start out a new administration on this note,” Richard Ben-Veniste, a prominent Democratic lawyer in Washington, said in a telephone interview. “It would be mimicking the tin-pot dictators of historical disgrace who seek to punish those who have run against them.”