Executive orders barring offshore drilling in most U.S. Arctic waters; an abstention at the U.N. permitting the Security Council to declare all Israeli settlement activity to be illegal and an obstacle to peace; the possibility of further action at the U.N. to formalize the administration’s comprehensive vision of a two-state solution to the Israeli/Palestinian conflict — President Obama is sprinting, not jogging, to the finish line.
In dashing through his last few weeks in office, will one of Obama’s final acts be to pardon Hillary Clinton for any violations of federal law she might have committed while she was secretary of State?
It’s an interesting and complex question.
{mosads}We should first note 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 her “home brew” email server or allegations of “pay to play” arrangements between the secretary of State and donors to the Clinton Foundation, which could constitute bribery.
The statute of limitations for most federal crimes is five years from the commission of the offense; that would apply to the two categories relevant to Clinton. Her tenure as secretary of State ended Feb. 1, 2013, so it is possible that the statute of limitations will not run until Feb. 1, 2018, more than a year after Donald Trump takes office.
What looks like one question — will the president pardon Clinton? — turns out, on analysis, to be two. The first question is: Would Clinton wish to receive a pardon?
That question seems to be a proverbial no-brainer. Surely, any person who had been in federal government would be eager to receive a presidential pardon, because it eliminates even the possibility of federal prosecution. That looks like all upside and no downside.
But there is a downside, and it isn’t trivial. A pardon must be accepted by the person who is pardoned if it is to effectively stymie any prosecution.
Furthermore, 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.
If acceptance of a pardon by Clinton would amount to confession of guilt, would she nevertheless accept it? A multitude of factors would go into her decision.
She, together with her attorneys, would have to decide how likely it is that the Trump administration would prosecute her, and, if it did decide to prosecute, how likely the administration would be able to prove she had committed crimes.
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.
If Clinton believes prosecutors might be able to make a strong case against her, the value to her of a pardon increases. If she is confident that any case against her would be weak or even futile, the pardon has less value.
If Clinton decides that, everything considered, she would prefer to receive a pardon, she would no doubt be able to convey that message to Obama, and then the ball would be in his court. Thus, the second question is: Would Obama grant Clinton’s request for a pardon?
From Obama’s perspective, the decision to grant or withhold a pardon is a political and a personal one. Legal considerations do not directly arise.
Like all presidents at the end of their terms, he is concerned about the legacy he leaves for history. 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?
Because acceptance of a pardon amounts to a confession of guilt, the acceptance by Clinton would, to a degree, besmirch both Clinton and also Obama. After all, Clinton was Obama’s secretary of State. If she was committing illegal acts as secretary, it happened literally on his watch.
On the other hand, if the new administration were to prosecute and convict Clinton of crimes committed while she was secretary, that might be an even greater embarrassment for Obama post-presidency.
In addition to calculations regarding his legacy, Obama and Clinton surely have developed over many years, both as opponents and as teammates, a personal relationship. If Clinton were to ask Obama for a pardon, how would that personal relationship play into his response? I cannot say.
Days after Trump won the election, the White House press secretary was asked by Jordan Fabian of The Hill whether Obama would consider pardoning Clinton. He carefully avoided a direct answer.
Instead, the press secretary said that, in cases where Obama had granted pardons, “[w]e didn’t talk in advance about those decisions.” He also expressed hope that the new administration would follow “a long tradition in this country of people in power not using the criminal justice system to exact political revenge.”
Of course, there is also a long tradition in this country that no one is above the law, no matter how high a position in government he or she might have formerly occupied.
So, those are the main considerations that would go into deciding a very complex question. It’s time for all of us to show our hands.
I’m saying yes, he will pardon her. Can you beat that?
David E. Weisberg is a semi-retired attorney and a member of the New York state bar. He currently resides in Cary, North Carolina, and has published pieces on the Social Science Research Network and in The Times of Israel.
The views expressed by contributors are their own and are not the views of The Hill.