When Hillary Clinton referred to Donald Trump’s 34 criminal convictions during last week’s Democratic National Convention, a loud chant of “Lock him up!” arose from the crowd. Clinton, the target of countless “Lock her up!” chants stoked by Trump eight years ago, permitted herself a nod and a smile.
There’s no gainsaying the hunger of many in the crowd at Chicago’s United Center, and of Democrats across the country, to see Trump behind bars. They wish it for many reasons: as condign punishment for his crimes against democracy, the subject of a new federal indictment filed Tuesday; payback for his exploitation of the criminal justice system for his own ends; petty vengeance against an obnoxious antagonist; and a means of ridding the country of his toxic presence.
The yearning to see Trump brought down is one component of the wave of enthusiasm that has so dramatically boosted Kamala Harris’ candidacy over the last month. In fact, Harris has stoked that desire in at least a limited way. Her standard stump speech includes the sure ovation bait, “I took on perpetrators of all kinds. … So hear me when I say: I know Donald Trump’s type.”
Speaker after speaker at the convention likewise brought up Trump’s list of proven and alleged crimes. They also repeatedly invoked Project 2025, the Heritage Foundation agenda suggesting Trump intends to convert the Department of Justice to an instrument of political retribution against his enemies.
But for Harris, a top official in the government carrying out two of Trump’s prosecutions, her supporters’ lust to see Trump locked up is a tricky topic. There is a fine but crucial distinction between calling out Trump’s criminal conduct and calling for him to be “locked up.” To date, she has been able to walk that tightrope effectively.
When the vice president confronted the same chant at political rallies in Wisconsin and Pennsylvania earlier this month, she was quick with a response that was markedly different from Clinton’s: “We’re gonna let the courts handle that. Our job is to beat him in November.”
Politically and ethically, that was precisely the right answer.
It’s right partly because of the clear contrast with Trump. It immediately puts Harris on the opposite side of the spectrum from Trump’s animating spirit of petty nastiness.
More than that, calling for the imprisonment of one’s political opponents — particularly when, as with Clinton, they have not been charged with or convicted of any crime — is a defining trait of a banana republic. And as the scholars Steven Levitsky and Daniel Ziblatt have persuasively documented, Trump’s first term pulled the United States sharply in that direction.
In addition, even the slightest tangible sign of official support for incarcerating Trump is likely to breed complications in the actual cases. Trump would seek to leverage it to support his claim that the charges against him amount to a political railroading.
Most important for the current campaign, Harris’ careful retort to the crowd brandishes her institutionalist credentials. Our democracy is designed to depend on neutral arbiters — namely, the courts — to deprive citizens of liberty, not the say-so of a ruler. That principle is especially fundamental to a prosecutor — the professional experience Harris is leading with as a candidate — who must not confuse her zeal with the law’s judgment.
It’s particularly fitting for Harris to insist on confidence in the courts. Their reputation — especially the Supreme Court’s — has declined precipitously in the Trump era based on the growing perception that they can be bent to the will of the powerful.
Harris is announcing to the country that although she is seeking power, she believes her power should be constrained by the checks and balances that Trump openly flouted — even if her supporters might wish it otherwise for the purposes of punishing an adversary.
Harris’ stance is not a given. Unlike Clinton in 2016, Trump is a convict as well as 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 too would put her in the role of telling the courts what they should do. Avoiding that appearance is more important — and more commendable — than revving up Trump haters.
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 change candidate.
Of course, one problem with walking a high wire is that your opponent can try to knock you off. And we can expect Trump and his surrogates to continue to suggest that Harris is trying to “lock him up” for political purposes.
But as a longtime prosecutor, Harris is well practiced at leveling harsh accusations while insisting on the indispensable institutional role of juries and courts in the ultimate decisions. That experience should continue to serve her well.
Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman