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Former U.S. Attorney General Responds To Trump's Special Prosecutor Comment


One of the most striking exchanges in last night's presidential debate came when Donald Trump talked about the private email server Hillary Clinton used when she was secretary of state.


DONALD TRUMP: If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation.

SHAPIRO: Clinton replied...


HILLARY CLINTON: it's just awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country.

TRUMP: Because you'd be in jail.

SHAPIRO: Our next guest was attorney general under a Republican president. Judge Michael Mukasey led the Justice Department at the end of the George W. Bush administration. Thanks for joining us.

MICHAEL MUKASEY: Good to be with you, Ari.

SHAPIRO: When Trump said that Hillary Clinton would be in jail if he won, what did you think?

MUKASEY: Well, I - look; I thought - initially I thought that was a quip, which is really all it was.

SHAPIRO: The same time his campaign manager later used.

MUKASEY: Yeah, I - and I heard that, and I think it was a perfectly valid description of it. What went before is something else again. But the part about the jail seemed unlikely to be serious and therefore more easily regarded as a quip.

SHAPIRO: There was a lot of very strong reaction from people in both parties. Attorney General Eric Holder said, in the USA, we do not threaten to jail political opponents. Ari Fleischer, who was a spokesperson for President George W. Bush, said, winning candidates don't threaten to put opponents in jail. Presidents don't threaten prosecution of individuals - doesn't sound like you're quite as concerned about it as those other former federal officials are.

MUKASEY: Well, I'm not quite as concerned about it because I don't see it happening even if he's elected, which is to say the decision has to be made initially by the attorney general as to whether the case warrants reopening at all. There may be reasons to look into it again, including matters not considered, including matters considered but where erroneous conclusions were arrived at.

Then the question is whether you appoint a special counsel. In this case perhaps you do because the matter was looked at by the Justice Department, and it's - hardly makes sense for the Justice Department then to redo its own investigation.

But then you have to determine whether the bringing of charges is proper. And then you start to get into questions of policy and whether doing that would make us look like a banana republic, which I think it would.

SHAPIRO: You think it would make us look like a banana republic if in fact...

MUKASEY: Heck, yes. I think it - although we're talking about criminal conduct that could have been prosecuted under the Obama administration, it wasn't prosecuted under the Obama administration.

So if it were to be prosecuted later on, that would be an entirely different scenario. And the policy question would be, do you go ahead anyway, or do you forebear so as to avoid putting both the country and everybody else through that kind of ordeal?

SHAPIRO: To be clear, you've been very critical of Hillary Clinton's use of the private email server, but at this point, given that the FBI has decided not to prosecute, it sounds as though you're saying it would be inappropriate to pick it up and pursue it when a president of a different party takes office.

MUKASEY: That's the - that to me is the - is a watershed event - that is that it's the president of a different party. That makes it an entirely different kind of exercise in my view.

SHAPIRO: How much of what you are concerned about is a politicization of the Justice Department? There's always this tug of war between how independent the attorney general is from the president, and this was something that happened during the George W. Bush administration that you were a part of.

MUKASEY: The short answer is that the attorney general is independent in deciding what cases to prosecute and what legal positions to take even if the president says, I think you ought to take a different position. But the attorney general obviously carries out the president's policies in terms of emphasizing which laws to enforce more vigorously. But if you're talking about who to prosecute, that's a whole different thing.

SHAPIRO: You have not endorsed either candidate. At this point, can you support either candidate?

MUKASEY: The question of what I do or don't do. I have thus far provided advice to anybody who wants advice from me. That's been the limit of my participation, and it's likely to remain the limit of it.

SHAPIRO: Michael Mukasey, thanks very much for joining us.

MUKASEY: Happy to do it.

SHAPIRO: That's former Attorney General Michael Mukasey, who's now a lawyer in private practice in New York. Transcript provided by NPR, Copyright NPR.

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