This is just coming out this morning and it’s only attributed on background to “a source” with knowledge of the transition team’s thinking, but Donald Trump is supposedly not going to pursue any prosecution of Secretary Hillary Clinton over her email transgressions or even the pay to play activities of the Clinton Global Initiative. The story popped up on MSNBC’s Morning Joe during the first hour and it immediately prompted questions as to why this would be coming out now. (To be fair, there wasn’t a rush of other folks confirming the veracity of the source.) Perhaps it’s something to do with the fact that Barack Obama is about to pardon a turkey so Trump felt a matching gesture of magnanimous generosity was called for. In any event, the show put it out on Twitter as coming directly to Joe Scarborough from the source in question.
In the second hour of the show, former Trump campaign manager Kellyanne Conway came on and sort of confirmed the report, saying, “… if the President Elect is telling you this before he even takes office..” so take that for what it’s worth.
Assuming this is true it probably ties in with speculation which was percolating before the election was even over. CNN covered it during the first days after the campaign and offered a few reasons why Trump would probably give her a pass, though not a pardon. These include:
Taking the most important point first, there simply isn’t sufficient evidence to suggest that former Secretary of State Clinton actually broke the law — which, for better or worse, does not make it a crime simply to communicate about classified information over an unsecured medium…
The Justice Department
[C]areer lawyers played an important voice in recommending against the prosecution of former Bush administration officials for their role in the torture of terrorism suspects early in President Barack Obama’s tenure, and similar opposition might also arise from efforts by the new attorney general to pursue a prosecution…
The Trial Court
The last legal obstacles to such a prosecution would come from the trial court — from an independent, life-tenured federal judge who could dismiss any indictment that he found to be legally insufficient, and from a jury of 12 of Clinton’s peers, which would have to be unanimous in its belief that she was guilty beyond a reasonable doubt to convict her of a crime.
Reading through that piece by Steve Vladeck, it’s fairly obvious that it’s a love letter to Clinton which relies on a great deal of optimism and hypotheticals to make the case, but it’s not entirely without merit. While the material revealed by Wikileaks and the subsequent FBI investigation added up to some damning evidence that the law was broken, the hesitation on the part of Comey and at least some officials at the FBI can’t be entirely discounted as political machinations. The prosecution wouldn’t be a slam dunk, depending in particular on who they drew for a judge and who wound up on the grand jury. And what if it failed? Taking Clinton to trial and coming up empty would effectively exonerate her permanently and allow her to finish penning her legacy with one in the W column. Conversely, leaving things as they stand essentially leaves a cloud hanging over that legacy as the only major party presidential candidate to finish their failed election effort under the cloud of a criminal investigation.
Just for fun, let’s finish this topic up with a bit of tinfoil hat territory speculation. Let’s say you’re Trump and you plan to set your new Attorney General loose on Hillary Clinton. The first and potentially most damning obstacle in your path is the possibility that Barack Obama won’t finish up his tour of duty by only pardoning a couple of turkeys. If he issues a blanket pardon to Clinton the case is closed. But as we’ve discussed before, the very act of giving her the pardon casts a pall over her by indicating that she needed one.
What better way to put Clinton at ease than leaking a story indicating that there’s no need for a pardon because the case is going away? I’d come up with another theory on top of that but it would probably involve either Bigfoot or the Lizard People.