Law & the Courts

Will Obama Pardon Hillary? Should He?

(Reuters photo: Carlos Barria)
And does Trump actually want her to be pardoned?

White House press secretary Josh Earnest raised some eyebrows on Wednesday when he engaged on the question whether President Obama would pardon Hillary Clinton before leaving office. Earnest did not indicate that the president had made any commitment one way or the other, but the fact that he is clearly thinking about it is intriguing.

The question primarily arises because there is significant evidence of felony law violations. These do not only involve the mishandling of classified information and the conversion/destruction of government files (i.e., the former secretary of state’s government-related e-mails). It has also been credibly reported that the FBI is investigating pay-to-play corruption during Clinton’s State Department tenure, through the mechanism of the Clinton Foundation — the family “charity” by means of which the Clintons have become fabulously wealthy by leveraging their “public service.” Thus far, Mrs. Clinton has been spared prosecution, but we have learned that the e-mails aspect of the investigation was unduly limited (no grand jury was used); and the legal theory on which FBI director James Comey declined to seek charges is highly debatable, even if it has been rubber-stamped by Attorney General Loretta Lynch.

The proximate cause driving the pardon question, however, is President-elect Donald Trump’s commitment that if victorious, he would appoint a special prosecutor to probe his rival’s “situation.”

This is one of what will no doubt be many things that Mr. Trump will find were easier to say in the heat of the moment (a contentious debate between the candidates) than to do in his new political reality. During the campaign, nothing damaged Clinton as badly as the specter of criminal jeopardy. But now Trump has been elected, and he has a governing agenda that will require cooperation from Capitol Hill. A prosecution of Clinton would provoke Democratic outrage, which means media outrage, which, in turn, means Republican panic.

Much of the outrage is ill-considered — although that doesn’t stop some smart people from expressing it. The objection is that the United States is not, for example, Turkey, where the Islamist despot persecutes his political opposition. But the comparison is apples and oranges. Clinton would not be under investigation for opposing Trump; the probe would be based on evidence of non-trivial law-breaking that has nothing to do with Trump. We know this because Clinton’s misconduct has already been the subject of ostensibly serious investigations by the incumbent administration’s law enforcers. If your position is that a politician may be investigated only if her own party is in power, then you are the one politicizing law enforcement — and creating an environment that breeds corruption.

But that, of course, is logic. Politics is not obliged to be logical. Even those of us who believe Mrs. Clinton’s misconduct demands a thorough investigation must acknowledge the real-world circumstances. The Trump administration will need to move on filling Justice Scalia’s Supreme Court seat; repealing Obamacare; debt, tax and regulatory reform; Iran; and who knows what unforeseen crises. A prosecution of Mrs. Clinton, especially if it is perceived as a rush to judgment, could derail the Trump train before it even pulls out of the station.

So what is to be done? Well, let’s put the merits of prosecution versus pardon aside for a moment. Politically speaking, the easiest out for Trump would be an Obama pardon of Clinton. But will the incumbent president do it? I suspect he will. There is no love lost between Obama and Trump, and probably not much between Obama and Clinton. But the president does have himself to think about — lots of love there.

Mrs. Clinton’s misconduct occurred when she was a high-ranking member of Obama’s cabinet. Her improper use of a non-secure private e-mail system was widely known in administration circles, yet it went unpoliced. Moreover, there is good reason to believe the administration was aware of Clinton’s serial flouting of the agreement she made with the White House as a condition of being appointed secretary of state — the one that required her to disclose and seek prior administration approval of Clinton Foundation activities that generated payments and donations from foreign sources. As it is, Obama’s dereliction in failing to make Clinton toe the line reflects poorly on him. Were these matters ever to be fully explored at a public trial, though, his legacy would take a major hit.

More to the point, as we’ve repeatedly noted in these columns, Obama, using an alias, willfully communicated with Clinton via her private e-mail account at least 18 times. This implicates him in her mishandling of classified information. Indeed, the Obama–Clinton e-mails would be admissible evidence in any trial of Mrs. Clinton — as likely would be the fact that the president falsely denied knowledge of Clinton’s private e-mail usage when asked about it in media interviews.

If President Obama had wanted these matters publicly exposed, he would have encouraged an aggressive criminal investigation of Mrs. Clinton, and he would not have invoked a confidentiality privilege to prevent Congress and the public from reading the Obama–Clinton e-mails.

For all the president’s gracious rhetoric this week about helping his successor succeed, the thought of leaving the thorny Clinton dilemma on Trump’s desk must be very tempting to Obama. On the other hand, Obama may calculate that a pardon for Clinton would burnish his legacy, just as historians have smiled on Gerald Ford for granting clemency to Richard Nixon (although, as I’ve argued, Nixon’s situation was very different from Clinton’s.) But all that aside, and regardless of the president’s feelings for Mrs. Clinton (which I suspect are warmer than some have suggested), this is more a matter of Obama’s self-preservation than anything else. That’s why I believe he will pardon her — after all, he seems to be pardoning everybody else. A pardon issued by Obama would make the whole affair go away, leaving Trump a clean slate.

But what if he doesn’t? What should President Trump do once the reins are in his hands?

Some are already arguing that Trump should pardon Clinton. There is some sense to this. Most of Trump’s ardent supporters would forgive him for going back on his word (as they would forgive him, it seems, for most anything). They would rationalize that he has more important fish to fry. There would also be reveling in the five or six minutes the media spent extolling Trump’s magnanimity before reverting to attack mode. As for the many in Republican circles who are tepid, at best, when it comes to Trump, a goodly number of them would cheer a Clinton pardon.

So if that’s the case, why shouldn’t Trump pardon Clinton?

Well for one thing, because a president is supposed to know what he is pardoning before resorting to that conclusive, irrevocable power. That is why the Justice Department has a pardon office, funded annually by Congress. The pardon office oversees an elaborate procedure, a key element of which is input from the prosecutor responsible for the case. The point is to ensure that the president is fully aware of the extent and nature of the criminality involved before deciding whether to grant clemency.

A president is supposed to know what he is pardoning before resorting to that conclusive, irrevocable power. That is why the Justice Department has a pardon office, funded annually by Congress.

Mrs. Clinton has never been subjected to a full-blown criminal investigation, with FBI agents and prosecutors working jointly (rather than at cross-purposes), using the grand jury to compel the production of testimony and physical evidence. Such an investigation would be important here because Clinton did not act alone. Her use of private e-mail was systematic, with numerous staffers supporting it, covering it up, and moving classified intelligence through it; several underlings carried out the destruction of government files; many subordinates may have made false statements to FBI investigators; and the Clinton Foundation is a vast multi-billion-dollar enterprise — one that will continue its potentially criminal activities if a prosecution does not put it out of business.

Among the salient factors considered in pardon decisions are (a) where the offender under consideration fit in the pecking order of conspiratorial activity and (b) how similar offenders are typically treated. To be sure, Hillary Clinton is a special case: A prosecution against a major party’s most recent presidential candidate (which may also implicate her husband, the former president) would roil the nation and could complicate its governance. Still, we are talking about serious crimes, and Mrs. Clinton is the most culpable participant. Is the plan to pardon everyone involved, or should Mrs. Clinton get a pass while her minions face the anxiety and costs of potential legal jeopardy?

And if Mrs. Clinton is to walk away scot-free after compromising our nation’s most closely guarded intelligence operations, and after she has reaped hundreds of millions of dollars by putting our government’s foreign and security policy on sale, what is a Trump Justice Department going to do in far less consequential cases?

Trump campaigned as the people’s champion, the president who was going to “drain the swamp” and end the sordid Washington system of two sets of rules: a forgiving one for the well-connected and a harsh one for everybody else. Well, what about it, then? If Mrs. Clinton skates, is the run-of-the-mill fraudster also going to get a pass for the more mundane $100,000 scheme? How about the low-ranking naval officer who takes a couple of souvenir photos of a top-secret submarine? The mid-level CIA analyst who brings a few classified memos home rather than staying late to read them in the agency SCIF? Is everybody off the felony hook now, or just the Clintons?

These are not easy questions. If President Trump and his advisers are going to answer them fairly and properly, it ought to be done on a much better-informed basis than what we now have. The new president should direct his attorney general to select a scrupulous, objective, non-partisan special prosecutor, an attorney with solid law-enforcement experience who is respected on both sides of the political aisle (there are more of those than you might imagine). That special prosecutor and a team of FBI agents, operating outside the supervision of Trump’s political appointees at the Justice Department, should conduct a full and fair investigation — under normal law-enforcement protocols, which means no public commentary unless and until a decision is made about whether to file charges.

Meanwhile, the Justice Department’s pardon office should begin preparing a full clemency petition, working, as always, out of the public spotlight. Eventually, input from both Mrs. Clinton’s attorneys and the special prosecutor should be invited.

At the end of that process, with a normal investigation and a full understanding of the facts, the special prosecutor should file an indictment if the facts are so damning that prosecution is warranted. But, before or after that is done, President Trump could issue a pardon if the equities weigh in favor of one, especially if the evidence appears to be ambiguous. Significantly, the special prosecutor and the attorney general could also end up announcing that the investigation is being closed without charges and with no need to address the question of a pardon. That would give Mrs. Clinton the vindication she deserves if there truly is insufficient evidence to prosecute her.

Again, I don’t believe it will come to that. My sense is that President Obama will issue a pardon that covers not only Mrs. Clinton but any crimes committed by any person arising out of both the homebrew e-mail system and the Clinton Foundation — including any false statements and obstruction of the FBI’s investigations. That would make it case closed, sparing Obama embarrassment and Trump a political hot potato. If the current president does not act, though, the new president needs to be ready with a plan.