Can Obama Pardon Hillary Clinton Without A ‘Guilty’ Criminal Indictment Or Being Arrested? Bill Clinton, Richard Nixon May Set Legal Precedent For Presidential Clemency

Will President Obama pardon Hillary Clinton of all the various criminal acts she has been accused of during the 2016 election? Can the White House pardon Hillary before an indictment? If Obama takes no action, is Hillary Clinton guilty of treason as some claim? If so, will Donald Trump prosecute Hillary and order the FBI to have Hillary arrested?

Those are the questions on everyone’s minds now that Trump won, since he previously boasted, “If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation.”

Before a Hillary indictment can occur under a Trump presidency, the current administration has a narrow window in which to act.

Reporters at the White House directly asked if we will see Hillary pardoned by Obama, but White House Press Secretary Josh Earnest dodged the question on whether Trump can jail Hillary.

“Well, as you know, the President has offered clemency to a substantial number of Americans who were previously serving time in federal prisons, and we didn’t talk in advance about the President’s plans to offer clemency to any of those individuals,” responded Earnest, although he noted how Obama hoped Trump’s “tone” in his victory speech indicated Trump would not seek to further “partisan politics.”

“The President expressed hope that that kind of tone would continue. That’s relevant because we have a long tradition in this country of people in power not using the criminal justice system to extract political revenge.”

Trump may have taken a conciliatory tone, but Jason Chaffetz, the chairman of the House Oversight and Government Reform Committee, is hardly done with investigating the former secretary of state. According to the Washington Post, Chaffetz said “it would be totally remiss of us to dismiss” the idea that Hillary is guilty without first finishing probes.

“I still have a duty and obligation to get to the truth about one of the largest breaches of security at the State Department,” he said. “Tens of thousands of documents still have not been turned over to Congress…. A Trump administration would be cooperative in getting these floodgates to open as they should.”

Bill Clinton's alleged abandoned son may seek a court-ordered paternity test

Can Obama Pardon Hillary Before Indictment? Bill Clinton Ironically Provides The Answer

Prevailing expert opinion seems to be the belief that a Hillary pardon is even possible before a Trump-run FBI recommends the Department of Justice to have Hillary indicted for the email server scandal. Attorney Samuel T. Morison told the Charlotte Observer that Obama can pardon Hillary but the “only constraint is that he can’t pardon someone in advance of committing the offense” and “the Constitution says the president can pardon ‘offenses’ against the U.S., not ‘convictions’.”

As it so happens, we do not have to look too far back into history for a legal precedent for this unique situation. In 2001, Bill Clinton granted clemency to former CIA director John Deutch, who was accused of mishandling classified information, prior to any charges being filed. Deutch had failed to follow basic security precautions and rejected Pentagon requests that security systems be installed.

Is Hillary Guilty? It Depends On What The Meaning Of What The Word “Intent” Is

Similar to the allegations against Hillary, Deutsch violated government rules by working with 31 classified materials on an unsecured computer at his home. Unlike Hillary, Deutsch admitted to his “error.”

“While serving as Director of Central Intelligence I erred in using CIA-issued computers that were not configured for classified work to compose classified documents and memoranda,” Deutch said in 1999, according to the Washington Post. “While it was absolutely necessary for me to work at home and while on travel, in hindsight it is clear that I should have insisted that I be provided the means of accomplishing this work in a manner fully consistent with all the security rules.”

When the FBI decided to not recommend Hillary’s indictment, they claimed that “there is evidence that [Hillary and her staff] were extremely careless in their handling of very sensitive, highly classified information” since “110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received.” However, the FBI claimed no “reasonable prosecutor” would consider Hillary guilty since the focus was on Hillary’s intent, or whether she willfully disobeyed the law. This is an important distinction since the U.S. Code on the Disclosure of Classified Information specifically notes that a person must “knowingly and willfully” mishandle the classified information.

Still, recent history also provides examples of where the FBI and the justice system successfully prosecuted someone who mishandled classified information without intent being the determining factor in judging guilt. According to the Associated Press, former Navy reservist Bryan Nishimura took classified Army records home with him after his deployment ended. Nishimura’s lawyer, William Portanova, argued that the military veteran had “never intended to break the law but was a pack rat.” Even though the violation was claimed to be a “technical and unintentional one,” the “Justice Department nonetheless thought it needed to punish ‘to make its point'” clear.

Bernie Sanders supporter thinks Donald Trump should win the election.
H.A. Goodman contends that a Donald Trump presidency will be less harmful to the long-term future of America than a Clinton presidency. [Image by Justin Sullivan/Getty Images]

If Obama Pardons Clinton, Will Hillary’s Criminal Acts Be Listed?

Much of the focus has been on the email server scandal, but what if Chaffetz opens the floodgates as he promises? The Clinton Foundation and the WikiLeaks emails have provided a lot of fodder for potential investigations, with True Pundit claiming that Hillary’s crimes include money laundering, child exploitation, perjury, pay to play through the Clinton foundation, obstruction of justice, and other felony crimes.

Assuming Obama pardons Hillary, that would mean the White House and the Democrats acknowledge that Hillary is guilty of crimes of some sort. We might also hope to learn the list of crimes Hillary really is responsible for since you would presume the Obama administration would need to be specific with its clemency.

However, Gerald Ford’s pardon of Richard Nixon provides a precedent in this case. Ford felt that “a long, drawn-out trial” of the ex-president would have been harmful to the nation, so he pardoned Nixon before any formal charges were made. In addition, Ford specifically worded his pardon to “grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” Similarly, Hillary’s pardon could be so vague that the American people are never certain which of Hillary’s crimes Democrats are admitting to.

Could Donald Trump Pardon Hillary Clinton Anyway?

During this entire scandal, Democrats have circled the wagons around their 2016 candidate. But if Obama pardons Hillary of an undetermined list of crimes, you have to wonder if the DNC violated American law by letting Hillary run for president in the first place. This puts Hillary and the Democrats in a no-win situation where clemency saves Hillary from jail at the price of admission of guilt. Thus, Obama has plenty of incentive to avoid offering a presidential pardon unless the Democratic Party determines it’s better to throw Hillary under the bus.

At the same time, Trump supporters will be pushing the Donald to honor his campaign promise to appoint a special prosecutor. This gives Trump a unique political opportunity if Obama fails to pardon Hillary before January. Instead of trying to arrest Hillary, Trump could pardon Clinton “against her will” in the public eye. Even worse for Hillary, Trump could list off many horrible criminal allegations as Hillary’s crimes. By framing the issue in this manner, Trump can appear to take the high road by urging the country to move forward as Gerald Ford did with Nixon. However, this presidential pardon allows Trump to impose an implication of guilt on Hillary, presumably making it impossible for Hillary to successfully run for president in 2020.

Do you think President Obama should pardon Hillary Clinton? If he does not, should President Trump forgive or push for Hillary’s indictment?

[Featured Image by Andre Penner/AP Images]