When it comes to considering a pardon for Hillary Clinton, however, one of the biggest obstacles could be President Barack Obama’s own words. | AP Photo
Would Obama consider pardoning Clinton?
Trump has promised to put her in jail, but Obama could forestall that possibility with the stroke of a pen.
By Josh Gerstein
11/09/16 12:29 PM EST
Updated 11/09/16 02:41 PM EST
President-elect Donald Trump’s campaign was energized by calls to prosecute Hillary Clinton over her use of a private email server containing classified information, but one man now has a unique power to frustrate the Trump partisans’ cries of “Lock her up!”: President Barack Obama.
Experts agree that Obama has the authority to foreclose that possibility by pardoning Clinton for any federal offenses she may have committed or could ever be prosecuted for. And he could do it whether she asks or not.
“The president here will, I’m sure, consider using what tools he has in his last couple of weeks, including a pardon, to do what he can before Trump takes over,” said Harold Krent, dean of the Chicago-Kent College of Law. “There’s a window and presidents have used those windows to accomplish a variety of goals.”
“What he’s going to do with this power in the next two months is really a good question,” said a close observer of the pardon process who asked not be named. “There are so many things on the table….This whole event is going to cause us to think even more about: what is this power?”
But such an act of clemency for Clinton is fraught with danger to Obama’s reputation and to hers, as any move to protect the failed Democratic presidential nominee would surely trigger charges of unfairness and political favoritism, while seeming to some to be an admission of guilt.
While Trump’s campaign-rhetoric about subjecting Clinton to a special prosecutor who would put her “in jail” was stark and fired up his crowds, he seems likely to softpedal that kind of talk in the coming weeks as he looks to bridge the stark divide in the country and build legitimacy.
> White House doesn't take potential Clinton pardon off the table By Brent Griffiths
Indeed, Wednesday morning, Trump campaign manager Kellyanne Conway suggested the issue of prosecuting Clinton has moved to the back burner for now.
“We did not discuss that last night since his victory. And he certainly didn't address it with Mrs. Clinton on the phone,” Conway said on MSNBC’s “Morning Joe.”
“I think you heard his own words last night -- to the extent that one man can as president, certainly Vice President Pence who's phenomenal, they're looking to unify the country. But we haven't discussed that in recent days. And I think that it's all in good time,” she added.
Still, a pardon would offer the only foolproof way to head off such a prosecution. And the window for Clinton’s best shot at clemency closes on Jan. 20.
Such a move by Obama could also be a boon of sorts for Trump. It would provide a convenient way for the incoming president not to follow through with a renewed investigation that could breed further resentment from Democrats.
When it comes to considering a pardon for Clinton, however, one of the biggest obstacles could be Obama’s own words.
At a press conference in August, Obama pledged to handle last-minute pardons by the book, distancing himself from the chaotic situation that played out in the final days of Bill Clinton’s presidency and tarnished his legacy.
“The process that I put in place is not going to vary depending on how close I get to the election. So it's going to be reviewed by the pardon attorney, it will be reviewed by my White House counsel, and I'm going to, as best as I can, make these decisions based on the merits, as opposed to political considerations,” Obama said.
The White House on Wednesday refused to say whether Obama would consider pardoning Clinton , but appeared to issue a warning to Trump, saying powerful people should not exploit the criminal justice system for "political revenge."
"As you know the president has offered clemency to a substantial number of Americans who were previously serving time in federal prisons,", Earnest told reporters during the daily briefing. "And we didn't talk in advance about the president's plans to offer clemency to any of those individuals and that is because we don't talk about the president's thinking, particularly with respect to any specific cases that may apply to pardons or commutations."
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He added, "We have a long tradition in this country of people in power not using the criminal justice system to enact political revenge. In fact we go a long way to insulate the criminal justice system from partisan politics."
Longtime Clinton lawyer David Kendall did not respond to a request for comment.
The legacy questions seem certain to be at the top of Obama’s mind. Ford’s pardon of Nixon was highly controversial and the time and helped cost Ford the 1976 election. Bill Clinton’s late-term pardons of financier Marc Rich and others unleashed a controversy that still mars Clinton’s image.
There are numerous precedents for a pre-trial pardon, including one in a high-profile case of mishandling classified information.
In one of his late term pardons in 2001, Clinton granted clemency to former CIA Director John Deutch, who had agreed to plead guilty to a misdemeanor for storing classified information on his home computer. Deutch had actually signed a plea agreement, but the paperwork had never been filed in court.
Ford’s pardon of Nixon also came before any charges had been filed against him. The broadly-worded decree absolved Nixon of guilt “for all offenses against the United States which he…has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”
Nixon never asked for or accepted the pardon, but that didn’t affect its validity. (A 1927 Supreme Court case says an unconditional pardon is valid whether or not it’s accepted by the recipient.)
Part of the fairness consideration in Clinton’s case would involve her own aides. How could Obama block a prosecution of Clinton but leave her aides and others caught up in the email fiasco without any protection?
It seems doubtful that a prosecutor would charge one or more Clinton aides or allies if she was off the hook, but it’s far from impossible. Oftentimes in such cases, aides wind up in prosecutors’ crosshairs even when higher-ranking officials escape charges.
A good example of that is Lewis (Scooter) Libby, former Chief of Staff to Vice President Cheney, who was charged with lying and obstruction of justice in an investigation into who leaked the identity of CIA operative Valerie Plame.
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In 2007, Libby was convicted by a jury and sentenced to two and a half years in prison. President George W. Bush commuted the sentence, sparing Libby jail time. However, Bush turned down repeated pleas from Cheney to clear Libby with a full pardon.
Wording a Clinton pardon might not be easy, lawyers say.
If Obama is fully intent on closing the book on a Clinton prosecution, he could try to sweep in not only her conduct as secretary of state, but also her statements since and anything she might have done in connection with the Clinton Foundation. Moving in that direction would again raise questions of whether Obama would excuse others or just his former secretary of state.
While pre-trial, pre-charge pardons have been uncommon in recent years, there are many examples throughout American history.
In 1974, Ford issued an amnesty for Vietnam War draft dodgers and deserters, conditioned on two years of public service in U.S.
In 1977, President Jimmy Carter issued a blanket, unconditional pardon to hundreds of thousands of men who dodged the draft during the Vietnam War era. Many had been charged, but most had not.
And in 1894, President Grover Cleveland pardoned an unnamed and uncounted number of Mormons in Utah, excusing them from prosecution for bigamy and related crimes.
The pardon power “is unlimited and unreviewable,” former House counsel Stan Brand said. “Constitutionally, certainly [Obama] could do that.”
Brand said he doubts Trump will follow through on his threats of a special prosecutor, but the former Congressional attorney acknowledged that’s a political judgment, so Clinton’s lawyers seem certain to consider the pardon option.
“If he wants to be president, he’s the president-elect now, he truly has to switch from campaign mode to governing mode,” Brand added. “I’d say good luck to them politically, if [Trump’s team] thinks that’s going to advance their agenda.”
READ MORE: http://www.politico.com/story/2016/11/would-obama-pardon-clinton-231120
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