November 5, 2016

2016 ELECTION | What’s the Law Got to Do With It?

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I’ve been asked to comment on the role of law-related issues in the election, specifically a Supreme Court vacancy and allegations of illegal conduct against each candidate. A Supreme Court vacancy is a pretty perfect ideological issue. This election, however, has not been as ideological as might have been predicted two years ago. We have two big government candidates, though they differ in how to use that big government. So it’s not surprising that Supreme Court nominations have not been the central issue.

That’s not to say the Supreme Court isn’t important to the ideological component of each party. Since the current vacancy is to fill the seat of the late conservative superstar Antonin Scalia, the balance of the Court is at risk.  The prospect of a liberal shift on the Court that may last a generation has been a prime argument why some ideological conservatives make the case for Trump even if they are against his non-conservative policies or personal issues.

On the liberal side, the concern seems to be not-so-much the Scalia replacement, but the longer-term concern that a President Trump would be able to fill additional vacancies in the next four years. That prospect is particularly threatening to the pro-abortion faction of the Democratic Party, which is pretty much most of the Democratic Party. So the concern is there, and it has motivated the Democratic base — but not as much as had the vacancy been to replace Ruth Bader Ginsburg

Other legal issues have far outweighed concerns about the Supreme Court, particularly allegations of illegal conduct by the candidates themselves.

On the Trump front, the 2005 Access Hollywood video showed Trump bragging about conduct that arguably constituted non-consensual sexual touching (though the issue of “consent” is not fully fleshed out in the recorded comments). Coupled with a slew of women coming forward after the release of the tape accusing Trump of similar conduct, the video has been the single most damaging event for Trump in the entire campaign.  We’ll find out in a day if it cost Trump the election. Other legal issues, such as Trump University, at most have been background noise.

On the Hillary front, email has been the predominant legal issue. Her exclusive use of private email for State Department business has developed into concerns over the use of a private server to store and transmit classified information. While the FBI Director made a public statement in July stating the FBI would not recommend charges, that resolution came as a surprise given the Director’s summary of the evidence which led many to conclude charges were warranted.

That issue might have died down except for two developments. First, WikiLeaks released emails from John Podesta’s account indicating possible favorable treatment by Hillary and the State Department for donors to the Clinton Foundation. That pay-for-play scandal in itself is dominating the headlines these last few days, and brings back on the table the entire issue of whether the private server and email account were for the purpose of concealing illegal conduct at the Foundation.

Second, the discovery that Clinton confidant Huma Abedin’s emails were on the computer of her disgraced husband Anthony Weiner has reignited the FBI investigation. The public announcement of the reopening of the investigation just 11 days before the election has changed the race, and put Trump within striking distance. While just yesterday the FBI announced there would be no change in its no-prosecution position, the damage was done.

So, the expected legal issue of the Supreme Court has not played as big a role as anticipated. It has been the other legal issues — Trump’s conduct towards women, Hillary’s private server, and the Clinton Foundation — that have driven the campaign.

William A. Jacobson is Clinical Professor of Law at Cornell Law School and director of the Securities Law Clinic.