Now that Hillary Clinton’s political career is over, will Barack Obama put an end to a potential retirement for his former Secretary of State spent on criminal defense strategies? The Hill’s Jordan Fabian asked the question that had to be on everyone’s minds on the day after Hillary’s stunning collapse in the presidential election, a question that clearly made press secretary Josh Earnest more than a little uncomfortable. Will we see a lame-duck pardon from Obama that will let Hillary off the hook for any potential criminal liability related to her secret e-mail server or the Clinton Foundation?
Via Grabien, Earnest manages to spend a lot of time saying little more than “no comment”:
Speaking hours after Donald Trump won Tuesday’s election, White House Press Secretary Josh Earnest said the president never telegraphs when he plans to offer clemency or issue a pardon.
“That’s because we don’t talk about the president’s thinking, particularly with respect to any specific cases,” Earnest told The Hill’s Jordan Fabian. …
“What I would direct your attention to, though, is that the president’s observation that he made in the Rose Garden about the tone that President-Elect Trump displayed in his remarks last night, and that tone was consistent with the long-standing traditions of our democracy,” Earnest said. “The president expressed hope that that kind of tone would continue. That’s relevant because we have a long tradition in this country of not — of people in power not using the criminal justice system to exact political revenge. In fact, we go to great lengths to insulate our criminal justice system from partisan politics.”
When a reporter followed up, asking specifically whether Obama would rely on Trump not pursuing a case against Clinton, Earnest declined to answer, saying only “I’m not going to speculate about steps President-Elect Trump may choose to take. The president expressed optimism about the tone that President-Elect Trump used when the eyes of the world were on him. when he spoke last night as the president-elect the first time.”
Obama certainly has the authority to issue a pardon at this stage, and it wouldn’t be entirely unprecedented. Gerald Ford pardoned Richard Nixon pre-emptively for criminal prosecution; pardons do not apply to impeachment proceedings, which were already under way when Nixon resigned. (Congress could have proceeded with impeachment and disqualification from federal office even after the resignation, but chose not to do so.) In the next administration, Jimmy Carter pardoned thousands of draft dodgers and deserters who fled to Canada and elsewhere to avoid service in Vietnam without any previous convictions or necessarily even indictments. The pardon power for presidents (and most governors) is plenary and can be applied pre-emptively.
Whether that makes for good policy is another issue entirely. Ford justified his pardon by citing the need of the country to move on after Watergate, with Nixon’s ignominious resignation enough of a verdict for history. The wisdom of that decision has been debated endlessly for the last forty-two years, but it also implied (as did Carter’s blanket pardons) a recognition of guilt. If Obama suddenly pardoned Hillary, he’d have to explain why he was campaigning as President for a person who he felt required a pardon. If Hillary isn’t guilty of crimes, why does she need a pardon at all? And if she’s guilty of crimes, what does that say about Obama’s decision to become her biggest surrogate and his embrace of her as a guarantor of his legacy?
Small wonder Earnest doesn’t want to answer the question. In a little over two months, it’ll be Trump’s problem anyway. The question could be asked of Trump once he takes office — and it might not be entirely theoretical, either. A pardon would taint Hillary in a way that Bill’s impeachment did in 1998 without having much more than symbolic consequences while putting the matter to rest. That would be an elegant and pointed coup de grace to the public life of the Clintons, a kindness perhaps more cutting than any of Trump’s threatened retributions during the campaign.