Will President Obama grant a pardon to Hillary Clinton? Should he? It’s an outlandish idea in some ways, but there are substantial reasons that Obama may consider granting a pardon to Clinton.
U.S. presidents have an essentially unfettered Constitutional “power to grant reprieves and pardons for offenses against the United States,” not subject to review or reversal. Such a pardon can be for a specific offense or a blanket pardon for all federal crimes. (Note that a presidential pardon covers federal crimes; the president has no power concerning crimes under state laws.)
There are strong reasons weighing against an Obama pardon. Clinton has not, of course, been charged with, much less convicted, of any crime. Granting a blanket immunity from prosecution to a political leader is contrary to the notion of the rule of law, and is suggestive of a “banana republic.” The United States does not, unlike some other countries, provide legal immunity to elected officials while in office. Additionally, a pardon comes with the intimation (but not the legal requirement) of criminal wrongdoing and both Clinton and President Obama may recoil at that implication. President Obama may also recoil at the impact of a Clinton pardon on his legacy, as other presidential pardons have had. Bill Clinton’s last minute pardon of tax evader Marc Rich is a close-to-home example, casting a renewed political shadow over the 2016 campaign. It would also provoke outrage from many, if not most, Republicans.
Weighing in favor of such a pardon is the avoidance of an overtly political criminal prosecution, promised by candidate Trump during the presidential campaign despite the determination of the FBI and Department of Justice that such charges were not warranted. The promise to jail his electoral opponent smacks of a “banana republic” and could further inflame the fraught political atmosphere. Millions of his supporters expect that Clinton will be jailed, as Trump basically promised. Any notion that President Trump will abandon candidate Trump’s promise ignores Trump’s own words and the “lock her up” chants of tens of thousands at his rallies. It’s worth noting that two leading prospects for attorney general in a Trump administration, Rudy Giuliani and Chris Christie, encouraged and even led such chants. It’s reasonable to expect that they would pursue criminal charges.
There is imperfect precedent for such a pardon; Gerald Ford’s pardon of Richard Nixon. Acting just a month after Nixon’s resignation, Ford granted “a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States” committed by Nixon while president. The precedent isn’t perfect; Nixon had been shown to have deliberately used the U.S. government to commit and hide profound crimes against his political “enemies.” Even the worst characterizations of Clinton’s email missteps fall far short of that. But there is a shared element of national political trauma and healing. Ford outraged many with his sudden and complete pardon, but his action cemented the vital accomplishment of his presidency in at least easing the political chasm opened by Nixon’s many Watergate transgressions. Clinton hasn’t done anything remotely similar, but Trump’s promised prosecution of her could damage America by greatly deepening the country’s political divide and further politicizing federal law enforcement.
A pardon may even be a relief to Trump, allowing him to express outrage while removing any political responsibility to his supporters for not acting on his dangerous promise.