"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."
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.
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.
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.
