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.