When Hillary Clinton addressed Donald Trump’s 34 criminal convictions during last week’s Democratic National Convention, a loud chant of “Lock him up!” rang out from the crowd. Clinton, the target of countless “Lock her up!” chants stoked by Trump eight years ago, allowed herself to nod and smile.
There is no denying the longing of many in Chicago’s United Center and Democrats across the country to see Trump behind bars. They want it for many reasons: as fitting punishment for his crimes against democracy, the subject of a new federal indictment unsealed Tuesday; as revenge for his exploitation of the criminal justice system for his own ends; as petty revenge against a hateful antagonist; and as a means to rid the country of his toxic presence.
The longing to see Trump ousted is one component of the wave of enthusiasm that has so dramatically propelled Kamala Harris’s candidacy over the past month. Indeed, Harris has fed that desire at least in a limited way. Her standard speech includes the line sure to elicit cheers: “I stood up to perpetrators of all kinds … So hear me when I say: I know Donald Trump’s types.”
Speaker after speaker at the convention also mentioned Trump’s list of proven and alleged crimes. They also repeatedly invoked Project 2025, the Heritage Foundation agenda that suggests Trump intends to turn the Justice Department into an instrument of political retaliation against his enemies.
But for Harris, a senior administration official prosecuting two of Trump’s cases, her supporters’ desire to see Trump imprisoned is a delicate issue. There is a subtle but crucial distinction between denouncing Trump’s criminal conduct and calling for him to be “locked up.” So far, she has walked that tightrope effectively.
When the vice president faced The same song At political rallies in Wisconsin and Pennsylvania earlier this month, he was quick to offer a markedly different response from Clinton: “We'll let the courts handle that. Our job is to defeat him in November.”
Politically and ethically, that was precisely the right answer.
In part, this is because she stands in stark contrast to Trump. Harris immediately places herself on the opposite end of the spectrum from the spirit of petty meanness that animates Trump.
Moreover, calling for the imprisonment of political opponents—particularly when, as in Clinton's case, they have not been charged or convicted of any crime—is a defining feature of a banana republic. And as academics say Steven Levitsky and Daniel Ziblatt have convincingly documentedTrump's first term pushed the United States strongly in that direction.
Moreover, even the slightest tangible sign of official support for Trump's imprisonment is likely to create complications in the actual cases. Trump would try to seize on it to support his claim that the charges against him amount to political manipulation.
Most importantly for the current campaign, Harris’s careful rejoinder to the crowd showcases her institutionalist credentials. Our democracy is designed to rely on neutral arbiters — namely, the courts — to deprive citizens of liberty, not on the decision of a ruler. That principle is especially critical for a prosecutor — the professional experience with which Harris is running — who must not confuse her zeal with the rule of law.
It is particularly appropriate that Harris would insist on trust in the courts, whose reputation — especially that of the Supreme Court — has declined precipitously in the Trump era because of the growing perception that they can be bent to the will of the powerful.
Harris is telling the country that while she seeks power, she believes her power should be limited by the checks and balances that Trump openly violated, even if his supporters might wish otherwise in order to punish an adversary.
Harris’s stance is not a given. Unlike Clinton in 2016, Trump is a convict and also a criminal defendant in three additional cases. Harris could take the position that now that a jury has decided his guilt, a judge should impose a certain sentence, or that he deserves to be convicted in the other cases against him. But that would also put her in the role of telling the courts what to do. Avoiding that appearance is more important, and more laudable, than stoking Trump’s detractors.
Harris has been performing other delicate balancing acts in her young campaign: talking tough on borders but welcoming legitimate asylum seekers; affirming Israel’s right to exist but calling for an end to hostilities in Gaza; embracing President Biden while presenting herself as the candidate of change.
Of course, one of the problems with walking a tightrope is that your opponent may try to take you down, and we can expect Trump and his associates to continue to hint that Harris is trying to “lock him up” for political purposes.
But as a longtime prosecutor, Harris has plenty of experience in making tough accusations and insisting on the indispensable institutional role of juries and courts in making final decisions. That experience should continue to serve her well.
Harry Litman is the host of the show Podcast “Talking to the Feds” and the “Speaking of San Diego” Speaker series. @harrylitman
