A Lawyer Ponders: “Will Obama Pardon Clinton? And If He Does, Will She Accept?” An Ethicist Answers…


Over at The Hill, lawyer David Weisberg examines the questions in the title above. Frankly, I assumed that Hillary needing a pardon from Obama was a dead issue, but Weisberg persuades me that it might not be.

Let’s begin by pointing out that it would be gallactically stupid for the Trump Justice Department to prosecute Clinton. Doing so would be a guaranteed circus; it would inflame Democrats who are already resembling The Human Torch, and it would appear to be a political prosecution. A winning President tries to put his losing opponent in jail would reek of banana republic vengeance, and that’s one reason why no American President has ever done it.

This is Donald Trump we are talking about, however, so who knows? Certainly many of his more angry and less grey matter-blessed supporters would love to see Hillary in the slammer. I am hoping and praying that Trump either is smarter than this or has advisors who can talk him out of his worst ideas, but I am not as confident as I should be. Weisberg makes the reasonable point that Hillary may not be confident either:

“Since being elected, Trump has been remarkably warm towards the person he used to call “Crooked Hillary.” But how confident could Clinton be that the Justice Department, under a Trump administration, would not prosecute? Prosecutorial decisions are supposed to be independent of political considerations, so Trump’s recent friendliness should not be controlling once the new attorney general is in office.”

That last sentence is both true, and following the wretched partisanship of the Obama Justice Department, very much in the category of  legal fiction. We can wish that the Justice Department won’t take marching orders from the new President, but the record shows most Attorney Generals are loyal to the President first, the party second, and the nation third. Jeff Sessions, a hyper-partisan Republican in the Senate, might surprise us. He also might really want to prove that Hillary broke the law, either with her e-mail machinations or with her use of the Clinton Foundation. In this case, an independent Justice Department may work to Hillary’s disadvantage.

Weisberg correctly notes “that the Obama administration’s decision not to prosecute Clinton would not bind the Trump administration”:

“Until relevant statutes of limitations have expired, she could still be prosecuted by the new administration. It is possible, in my opinion, for Clinton to be prosecuted for either her improper handling of classified information on “home brew,” or allegations of “pay to play” arrangements between the secretary of State and donors to the Clinton Foundation, which could constitute bribery.”

Nonetheless, successive administrations should strive for some semblance of continuity. On the matter of the e-mails, the fair, just and ethical course is to treat the issue as settled, not because, as some commenters on the post suggest, the e-mail server shenanigans lost Clinton the Presidency, but because it is one country, one government, and one set of laws, and successive Presidents should respect the tough calls of previous administrations unless there is a very good reason not to. There just is no good reason to prosecute Hillary for the server now. As for her influence peddling via her foundation, it would be a very difficult case to make absent smoking gun evidence of bribery that has yet to surface.

Weisberg thinks Obama might pardon Hillary since the President is firmly in his “I don’t give a damn” stage, and happily sticking his thumb in the eyes of Republicans, Trump, oil companies and Netanyahu because that’s just the kind of guy he is. Pardoning Hillary would be almost as stupid as Trump prosecuting her–not quite, but close. To many the act would make Obama seem complicit and corrupt. Weisberg asks, “Does he want his legacy to include a pardon of the Secretary of State who served under him during the entirety of his first term in office?” I would put it a bit more forcefully: “Does Obama want to admit that his leadership oversight was so lax that he allowed the head of his most important department to compromise national security for her personal political benefit?” Obama, after all, did lie about his knowledge of the private server.

Assuming Obama would offer Clinton a pardon, would Hillary take it? Weisberg argues that accepting the pardon would be admitting guilt. “There is solid legal precedent that acceptance of a pardon is equivalent to confession of guilt. A U.S. Supreme Court case from 1915 called Burdick v. U.S. establishes that principle; it has never been overturned,” he says.

That’s a lawyer talking. I don’t think anybody today regards accepting a pardon as an admission of guilt. Richard Nixon certainly maintained to the end of his days that he broke no laws. When someone wrongly convicted is pardoned and accepts, who says, “See? I told you he was guilty!”? If Hillary accepted a pardon, the vast majority of non-rabid Clinton-haters would regard the act as prudent and compassionate protection from an administration led by an impulsive and vindictive figure.

The Hill article concludes with Weisberg betting that Obama does pardon Clinton, and that she accepts. I’ll take that bet:

1. It would be both stupid and unethical for the Trump administration to pursue what would appear as a political prosecution against Hillary, damaging to all concerned for no over-balancing benefits. Yes, we have the Rule of Law, and nobody is above it. But the FBI made a defensible decision based on the evidence. It should be regarded as having closed the matter.

2. It would be both stupid and unethical for Obama to pardon Hillary, increasing public suspicion and cynicism about the government when we have too much already.

3. It would be uncharacteristic for Clinton to accept a pardon—not unethical, but so unlike either Clinton that it just won’t happen. She’d fight it through, use it to build sympathy and support, and might even see it as an opportunity to do a Nixon and come back from the political dead.


32 thoughts on “A Lawyer Ponders: “Will Obama Pardon Clinton? And If He Does, Will She Accept?” An Ethicist Answers…

  1. “Since being elected, Trump has been remarkably warm towards the person he used to call ‘Crooked Hillary.’”

    Do NOT trust this as significant. Look at what he did to poor Romney.

      • “I don’t think anybody today regards accepting a pardon as an admission of guilt… who says, “See? I told you he was guilty!”? … would regard the act as prudent and compassionate protection from an administration led by an impulsive and vindictive figure.”

        Do you think that this would follow equally if Trump were to pardon her and she were to accept, or would he then be able to leverage it as implied guilt?

        • Good question, and yes, accepting a pardon offer from Trump might suggest guilt. Then again, if the offer was, “I’m pardoning you because I happen to know the Justice Department is preparing an indictment”? Not sure.

  2. Trump can just have both HRC and Obama – and anyone else really – detained indefinitely by the military under existing laws.

    Most people don’t realise just how sweeping the powers of the presidency have become since 9/11. The only thing keeping the lid on has been respect for custom, tradition, and constitutionality. Common Sense if you like.There are certain things that are just *not done* even though technically legal.

    Or were. Things are different now. We’ll see what happens after the inauguration, when it’s too late to do anything about it. The odds of any impeachment of a GOP president when the House and Senate are both GOP controlled, and in today’s partisan atmosphere, are as low as the odds of the Electoral College deciding that the nominee is incompetent. In practice, not gonna happen, regardless of circumstances. Remember, while the DNC emails were leaked, the GOP ones weren’t. Sword of Damocles time.

    Hopefully I’m wrong. Don’t think so though. 100 Federal Judge positions have been kept unfilled for example, it’s not just the SCOTUS vacancy.

    • “Trump can just have both HRC and Obama – and anyone else really – detained indefinitely by the military under existing laws.”


      • Zoe operates under the delusion that Trump represents a complete break with precedent and will be a no-holds barred President.

        I think it’s a kind of self-medication this crowd puts itself through to avoid ever affixing ANY blame whatsoever on Obama and the Dems in Congress who have operated in a hyper-partisan and divisive way since Bush’s 1st mid-term era.

        They don’t want their gods tarnished, so they speak a language that acts as though Trump has created the current conditions in politics.

        It’s sad really.

        • Trump may well be a no-holds barred president. What Zoe doesn’t understand is that whatever technical power he’ll have, people need to be willing to follow orders.

          This is America, it works only because we agreed to pretend the president has power and then forget the joke. Presidents, unlike monarchs aren’t chosen by the gods. No divine right of presidents.

          So while, yes, he can order anyone thrown into the modern version of an oubliette, he does it at the risk of people refusing to do it and getting his ass shot off by his secret service detail for trying it. Trump orders Mexico nukes for refusing the pay for a wall, Chairman of the Joint Chiefs tells him to shove it up his ass and twist.

        • Zoe operates under the delusion that Trump represents a complete break with precedent and will be a no-holds barred President.

          With the greatest respect, you don’t appear to have niticed that he has already broken precedent after precedent.

          Tax returns, anyone? Putting assets in a blind trust? Living in the White House, and taking on the duties 7 days a week?

          Will he be a “no holds barred” president? We’ll see. After all, the GOP Senate followed precedent so well in SCOTUS appointments.

          Apart from “argument by incredulity”, I’m still awaiting evidence that I’m wrong here. We had too many “Of course he couldn’t do *that* ” statements in the recent past, where he did exactly that, because there was nothing but tradition and custom stopping him. Precedent.

          Valkygrrl makes a credible case that underlings will just refuse to obey orders. Her view is bolstered by the reaction from the military regarding the use of torture, that “illegal orders” wouldn’t be obeyed.

          But these orders wouldn’t be illegal. The safeties have been removed. If a minion refuses to obey, he gets fired and his replacement given the same orders. Repeat until someone obeys, out of ambition or because they are True Believers.

          I don’t see the Secret Service or anyone else staging a coup.

          If I’m wrong, please show me where.

        • In a year, either you will look foolish, or I will.

          I fervently hope it’s me.

          If not, now is the time to make contingency plans on how to put the situation to rights, and restore a relatively sane system. If your ideas on that involve violence, then you’re part of the problem. Things almost certainly won’t get bad enough so that the instability of violent action wouldn’t be orders of magnitude worse. The only case where that would be incorrect is if something like a nuclear exchange involving targets on US soil happens. I don’t see that as being more than a very remote possibility, not appreciably larger than the risk currently.

          But try thinking the unthinkable. What would you personally do should Trump and the GOP go “no holds barred”? Shrug it off, and wait for better times? Unless there’s some serious changes to voting regulations, those better times would come eventually. But what if there were?

          • “What would you personally do should Trump and the GOP go “no holds barred”?

            I’m beginning to think you don’t understand the US as well as you might. Holds are barred. There is no way, especially not during wartime, for any President to stomp on civil liberties. Obama went further than most, and most people never even noticed. People think the Supreme Court, because, you know, CONSERVATIVES!!!..would sit by and permit over-reach. They wouldn’t. Nor is there any reason whatsoever to believe Trump is so inclined. All the fear-mongering about “authoritarian tendencies” is just that: partisan fear-mongering. Obama has been so nauseatingly weak that competent leadership will seem like a shock. It’s not dictatorial to enforce the laws. It’s not authoritarian to oppose the UN. This is a total myth. I don’t know what you think you mean by violence. States can’t defy the national government. Andrew Jackson put down threatened rebellions because states knew that when he drew red lines, he meant it. Nothing wrong with that, at all. Nor is there anything wrong with terrorists and foreign enemies knowing that a direct attack on US soil will draw a real and deadly response rather than Obama’s favorite retaliation, harsh words.

            The risk with Trump is that he will make bad, careless, ignorant and reckless decisions within his legitimate powers, which are plenty. The risk of “no holds barred” is just partisan slander.

            • “The risk of “no holds barred” is just partisan slander.”

              Maybe. But it would seem that the PE’s inflammatory rhetoric could have the effect of people thinking that this is possible. Yes, we know that he is a liar. We know that he speaks often in hyperbole. We also know that he has made appointments of people who seem to hold dangerous opinions. These people will be advising the PE.

              “The risk with Trump is that he will make bad, careless, ignorant and reckless decisions within his legitimate powers, which are plenty.”


              • Holds are barred… Yeah, sure.

                The Justice Department says police in a small Louisiana town routinely arrested and placed hundreds of residents in jail without probable cause based on a “hunch” or “feeling” that they were involved in criminal activity.

                The U.S. Justice Department’s Civil Rights Division found in a report released last week that the Ville Platte Police Department and the Evangeline Parish Sheriff’s Office used investigative holds to detain a “staggering” number of citizens who were “commonly detained for 72 hours or more without being provided an opportunity to contest their arrest and detention.”

                The scathing report says both law enforcement agencies strip-searched individuals suspected of committing crimes, placed them in holding cells without beds, toilets, or showers, and denied them communication with family members and loved ones for days at a time.

                “Instead, they are held and questioned until they either provide information or the law enforcement agency determines that they do not have information related to a crime,” the Dec. 19 report concluded.

                Unconstitutional? Yes, of course. But it’s been going on for years, and it will likely be years more before it’s stopped by the courts. And if you think this is the only part of the US where such things happen, you’re dreaming. The best that can be said is that it’s uncommon, and unknown in most places.

                – A federal judge in Texas on Saturday issued a court order barring enforcement of an Obama administration policy seeking to extend anti-discrimination protections under the Affordable Care Act to transgender health

                The judge stated that it wasn’t clear to him that the government had any significant interest in making sure trans people weren’t denied the same medical care non-trans people have, and that the RFRA allowed Federally funded medics, not just non Federally funded ones, to let trans accident victims bleed out if treating them was “against their religious convictions”.

                He’s been reversed on appeal many times in the past of course, but he extended his ruling countrywide, as he always does. It may be years before it’s overturned, assuming of course the new Trump administration disagrees with him. Given the cabinet picks, not gonna happen.

                Eventually, the courts usually come to sane decisions. They’re just not agile enough, tailoring decisions narrowly and judiciously after many years, when a dozen new, sweepingly broad decisions can be made for every one that’s overturned.

                Despite the fact that it’s standard practice for a president-elect to put security entirely in the hands of the Secret Service, Trump is also maintaining that private army, an unconventional arrangement that one former agent called “playing with fire,” according to a Politico report.

                As I understand it, Presidents aren’t allowed by law to spend their own money on private armies and enforcement agencies (so Congress has some control through the budget), so this is illegal. But so what? Who’s going to enforce that law?

                “Holds are barred” my Aunt Fanny.

                • Wait.

                  Hold on.

                  Let me get this straight.

                  Your argument boils down to a series of abuses occurring under Obama’s watch, then rounding out with an anecdote of Trump maintaining private body guards, and the conclusion is Trump is a no-holds-barred President.

                  And he isn’t even President yet?

                  I don’t even think I can craft a response to this. Or ought to.

  3. If Hillary doesn’t get prosecuted, then Trump needs to pardon all those who are in prison for the exact same crime. How do you say you’re not going to prosecute her while letting others whose transgressions weren’t as bad languish behind bars?

      • Wait, what???

        That’s no argument.

        OJ WASN’T Convicted NOR received any sort of “pardon”.

        I think a stronger rebuttal would simply have been that sometimes, in a few very isolated cases, Utilitarianism IS a valid ethical system. And then, the argument is, that the case of Hillary in this context with this Scope of side-effects, is an isolated enough case to warrant justifying the pardon *on utilitarian terms*.

        • Huh? HUH? The silly theory was that if Hillary was pardoned, then there was something unethical about those with similar crimes to what SHE WAS NEVER EVEN TRIED FOR being released. That’s ridiculous, just as the fact that O.J, skated is no reason to free convicted killers is ridiculous, and for the same reason: one individual that the system lets off doesn’t make anyone else less guilty.

          • Let me clarify some more: Assertion: someone who is well-known whom the system lets escape punishment for a crime mandates that others less famous be released from their punishments for the same crime.

            And that’s crap, but crap that would apply to O.J., who appeared to be as guilty of his alleged crime as Hillary was of hers. The pardon isn’t the issue. “Justice” is.

  4. I’m beginning to think you don’t understand the US as well as you might. Holds are barred. There is no way, especially not during wartime, for any President to stomp on civil liberties.

    Japanese internment? That’s within living memory, and a legal system not greatly different from the one today. More respectful of civil liberties in theory anyway. Less so in practice, but only because of Jim Crow laws at the state level.

    Before that – Trail of tears? Lincoln’s suspension of habeas corpus?

    The USA has been legally on a war footing since 9/11. Haven’t you noticed the TSA, or is it slowly boiled frog syndrome?

    I think it’s going to be very interesting seeing the consequences of Sessions as Attorney General. The combination of rigorous zero tolerance enforcement of existing Federal anti marijuana laws, and massive expansion of civil forfeiture, both of which he’s openly committed to, could have some profound effects in states such as Colorado.

    Massachusetts has already seen the writing on the wall.

    ” Massachusetts lawmakers on Wednesday pushed through a surprise six-month delay in the retail sale of marijuana for recreational use,… Hanging over all the states is what action President-elect Donald Trump will take after he is sworn in on Jan. 20. Marijuana remains illegal under federal law, and legalization by the states has occurred only because of the blessing of the outgoing Obama administration. ”

    I don’t wish to engage in sealioning – requiring unreasonable standards of proof. But so far all I’ve got as arguments for the impossibility of a no-holds-barred presidency are arguments from incredulity and arguments by assertion, generously larded with a good bit of ad hominem personal insult.

    I could be completely wrong. I genuinely hope I am. But the more I ask for concrete evidence, the more obfuscation I get. Certainly the SCOTUS will very likely quash the most egregious excesses. But that can take decades. The system is not agile enough to cope, not when blockage at the circuit level by partisan judges can add many months or years before it even gets before the SCOTUS.

    By that times, a dozen or a hundred new outrages have been perpetrated. And remember – ” John Marshall has made his decision; now let him enforce it!”

    Look at North Carolina.

    • Ethics is about learning, Zoe. So is democracy. Yes, I supposed if a brilliant strong-willed autocrat who had to hold together a regionally stressed nation while dealing with a large and diverse native population that was widely regarded as savage and sub-human, especially by the President, whose own family had suffered at that same population’s hands, and that President was so popular that he could get away with defying the courts since the system itself was only 40 years old, or the distance between Obama and LBJ, the Trail of Tears might be relevant, except that the episode is now universally regarded as a human rights disaster; and yes, if the US found itself in a Civil War that created an existential threat requiring the President to focus his Constitutional War powers on his own country; and yes, if the US had reason to believe that a sufficiently large number of US citizens were part of killer cells prepared to slaughter innocent citizens coast to coast, AND was such a threat that it was deemed sufficient to overcome the unanimous judicial revulsion at the Japanese internment, then maybe your examples would be relevant. Or maybe we could re-institute slavery or repeal the right of women to vote.

      Hysteria. And a state over-reacting to the bathroom demands of a previously invisible group it doesn’t understand isn’t within 500 miles of any of it.

    • The USA has been legally on a war footing since 9/11. Haven’t you noticed the TSA, or is it slowly boiled frog syndrome?

      Some of us don’t set foot in an airport without doing their damndet to slow down lines and make TSA agents as miserable as possible while still avoiding arrest.

      Some of our congresscritters are sick of hearing some other people complain about the evils of body scanners. You must realize that I have the same objections to them that you do.

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