Lock her up!

How many times did you hear that during the endless campaign of 2016? I lost count long ago. With the President Elect not tipping his hand at this point as to whether or not there will actually be a special prosecutor looking into Hillary Clinton’s “situation” we have no guidance as to how we should proceed. But as long as the possibility exits, plenty of pundits are speculating on the possibility that Barack Obama might want to issue a full and complete pardon to Clinton before he leaves office. Not too long ago I would have scoffed at the idea, but in what has already been one of the strangest years in American politics on record I’m no longer quite so sure.

Andrew C. Mccarthy has a lengthy thought piece on the subject over at National Review this week. Even if he maintains the will to do it, could Trump actually pull this off? And if the signs point that way, what would be the fallout from Clinton receiving a pardon as a parting gift from the 44th president?

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.

I’ve been mulling this one over for a couple of days and it seems to me that it’s a double edged sword for both the Republicans and the Democrats. Right up front I absolutely agree with Andrew’s statement in the linked article that, there is significant evidence of felony law violations. (And he explains the details very well.) If we look at this from an unbiased, law and order perspective, you can certainly make the argument that a full investigation is called for and a trial if the results indicate such is required. This is essentially the argument in favor of going after her. But this is one of those cases where you simply can’t extract the politics from the equation.

Arguments against pursuing such a course of action seem to be centered on the political fallout and potential blow back from Democrats in Congress and among their rank and file voters. That’s probably overstated. It’s not as if the Democrats are lining up to “work with the new President” in any meaningful way and most of Hillary’s voters weren’t going to be helping us out in the midterms anyway. But it could certainly build on the perception of Trump as a bully who is seeking to punish his enemies via the power of his office and that might turn off some of the voters in the middle.

Even if you’re a fan of pursuing further investigations against Clinton because you’d really like to see her be held accountable, how much satisfaction would you really derive from a conviction? At this point it almost seems as if she’s being punished more thoroughly than any judge could manage. Hillary has essentially become the villain in a Larry Bond novel who works on her evil plot for decades and is within moments of detonating a tactical weapon on the National Mall when some geek comes along at the last second, clips the correct wire on the device and notifies the authorities to come haul her away. She’s serving a four year sentence in a prison named Anywhere But The White House.

What the Democrats need to consider is something different. What if Obama actually did issue a pardon? Yes, Clinton would be permanently off the hook and put all of that unpleasantness behind her, but she would also immediately be forever branded as the almost President who was so crooked she needed to be pardoned. Her name would appear in every political trivia book immediately below that of Richard Nixon. Given how focused she has been on cementing her piece of immortality, I’m not sure she’d even accept a pardon if Obama called her up to ask. The humiliation might be too much for that ego.

In the end, I think Trump’s best play is to forget about a special prosecutor and simply allow the FBI to continue whatever investigations they currently may have going into the Clinton Global Initiative, Huma Abedin or anything else they’ve got on the stove. (After, of course, appointing an Attorney General who makes it crystal clear to the FBI that they will have the full backing of the Justice Department and the White House if they decide to move forward.) That keeps Trump’s fingerprints largely off of it and lets the rule of law run its course. And if his own Justice Department can’t come up with a winnable case then a special prosecutor probably wouldn’t have helped anyway.