Constitutional law professors react to two issues raised in second presidential debate

Legal scholars discuss Trump’s special prosecutor claims and differences in Supreme Court nomination process

Following the Oct. 9 Presidential Debate between candidates Donald Trump and Hillary Clinton, Western Michigan University-Cooley Law School Constitutional experts at the law school’s Michigan and Tampa Bay campuses took a deeper look into two Constitutional topics that were discussed: Trumps claim of appointing a special prosecutor to look into Clinton’s alleged email scandal, and how each candidate would handle appointing Justices to the Supreme Court.

Regarding the idea that Trump would appoint a special prosecutor to investigate any criminal wrong doing by Hillary Clinton because of her use of a private email server, Professor Devin Schindler looked to the independence of the attorney general (A.G.) while Professors Brendan Beery and Jeff Swartz looked at laws regarding the appointment of special prosecutors.

“This claim is questionable since the Independent Counsel law is designed to remove the President and his or her political motives from the criminal investigatory process,” said Beery, who teaches Constitutional Law at the Tampa Bay campus. “It is also inconsistent with longstanding rules and protocols against political meddling in the business of the Justice Department.”

Swartz, a former Miami-Dade County Judge noted that “Under the present special prosecutor statute, the president would not have such powers, unless the U.S. attorney general or the investigating U.S. attorney had a conflict of interest.”

“Historically the U.S. attorney general has been viewed as being above politics, however, the A.G. is a member of the executive branch who answers to the president,” said Schindler, who teaches Constitutional Law at WMU-Cooley’s Michigan campuses. “Mr. Trump’s comments at the recent debate raise continuant question as to the independence of the A.G. and to how the A.G. should respond to political pressure.”

In addition to Trump’s special prosecutor claim, the candidates discussed the kinds of justices they would consider appointing to the Supreme Court.

“The philosophical difference as to how the Constitution should be interpreted dates back to the adoption of the Constitution itself. The candidates have very different views as the appropriate role of the Supreme Court,” said Schindler. “Trump has announced he would nominate candidates who reflect an originalist perspective, meaning judges who espouse this theory look to the plane language of the Constitution and to the historic milieu that was adopted. Clinton has indicated she will nominate judges who reflect a non-originalist perspective.”

Swartz agrees with Schindler that the differences between the two candidates on the Supreme Court could not be any further apart.

“Trump’s approach is to place on the court conservative justices who would roll back regulations, institute substantial changes in the application of the fourth, fifth and sixth  amendments, and overturn Roe v. Wade and a woman’s right to chose,” said Swartz. “Clinton would place upon the court progressive justices who see the Constitution as a living and breathing document, which must apply itself to society as it changes.  Those justices would be more apt to apply the 14th Amendment to expand protections to minority groups and preserve a woman’s right to chose.  When given the right opportunity a court dominated by progressives would uphold any campaign finance laws, which congress would create, uphold the Affordable Care Act and any new regulations placed on those who operate within our financial institutions.”