I BEG YOUR PARDON

CAN BARACK OBAMA ‘PREEMPTIVELY’ PARDON HILLARY CLINTON?

Hillary Clinton has rarely been seen since her devastating loss on November 8th and there may be good reason for the vanishing act. Along with the press and the public, an indictment seems to be high on the list of ‘things to avoid,’ before January 20th.  There’s a mischievous silence surrounding the Clintons lately,  kinda like the times your kids have a group of friends over and the room suddenly goes quiet after they’ve been running and screaming through the house all day – a parent’s first reaction is to question why they got so quiet and wonder what the heck they’re up to. Let’s take a look at what’s happening at the Clinton slumber party.

Via True Pundit: “Hillary and President Bill Clinton are secretly negotiating framework for a potential pardon from President Barack Obama that would spare Hillary from looming criminal indictments, according to Justice Department sources. But there’s a catch, as there often is when it comes to legal proceedings and the Clinton family. Neil Eggleston, White House Counsel to the President who oversees and approves all presidential pardons and commutations, was previously employed by President Bill Clinton’s White House as a key lawyer to the former president and Hillary Clinton. Also, Eggleston has previously represented Cheryl Mills, a key Hillary attorney believed to be involved in Clinton’s clemency negotiations.” http://truepundit.com/hillary-negotiating-secret-pardon-with-obamas-white-house-counsel-who-previously-worked-for-clinton-family-white-house/

PARDON ME

… for sounding ignorant, but don’t you have to commit a crime(s) before being granted a presidential pardon? Hillary has told the world that she has done nothing wrong and that she only made a simple mistake by not separating her personal emails from her work emails. A mere lapse in judgement with respect to convenience, so why all the pardon chatter, is she afraid of something? Was Ford’s preemptive pardon of Richard Nixon the right move?  Slate doesn’t think so. In a 2006 piece titled “why pardoning Nixon was wrong,” Timothy Noah writes:

Why was Ford wrong to pardon Nixon? Mainly because it set a bad precedent. Nixon had not yet been indicted, let alone convicted, of any crime. It’s never a good idea to pardon somebody without at least finding out first what you’re pardoning him for. How can you possibly weigh the quality of mercy against considerations of justice? Yet it would happen again in December 1992, when departing President George H.W. Bush pardoned Caspar Weinberger, former defense secretary, 12 days before Weinberger was set to go to trial for perjuryhttp://www.slate.com/articles/news_and_politics/chatterbox/2006/12/why_pardoning_nixon_was_wrong.html

Can presidents legally issue preemptive pardons?  In a separate 2008 slate article, Jacob Leibunluft writes :

Yep. In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time—regardless of whether charges have even been filed.” http://www.slate.com/articles/news_and_politics/explainer/2008/07/preemptive_presidential_pardons.html?GT1=38001

CONSTITUTIONALITY

Are preemptive pardons constitutional? According to one person’s interpretation of the constitution in a 2008 blog, no they’re not:   “Jacob Leibenluft, in his article in Slate, has missed an important point. To understand the pardon power, we need to examine just what is happening when an executive with pardon power grants a pardon. What he is saying, essentially, is “I won’t enforce a sentence against x for y, and I bind my successors not to do so as well.”

Where the question gets interesting is when we ask if he can grant a pardon for a conviction that has not yet occurred, or prevent a trial from being held. From my historical research, and despite Ex parte Garland, I find the answer to both is no. A pardon has to specify a sentence as well as the defendant, and that can’t be known before conviction. Granting a pardon to someone for anything he might be convicted of, in advance of such conviction, is in conflict with the constitutional prohibition against granting titles of nobility, and exempting someone from prosecution for anything at all is making that person a noble, even if it comes only with a title of “he who is above the law”. Leaving aside the obvious likelihood that the Court in Ex parte Garland was corrupt, this point was not argued before the Court and therefore the precedent does not cover it.

Even if we ignore the problem of conflict with the title of nobility prohibition, it cannot be logically inferred from the pardon power that a pardon can prevent prosecution. The president may refuse to carry out a sentence but he has no power to prevent a charge from being filed, an indictment obtained, and the court from trying the accused. The court might be reluctant to do so if the sentence won’t be imposed, but a trial serves many purposes besides executable conviction, one of the most important of which is to bring out the truth, and it may be important to proceed with trial even if the conviction won’t be executed.

There is also an issue of whether a president can bind his successors not to enforce a conviction. That is an implied power of a monarch, but not of a president. My finding is that the pardon power of the president is not the power to bind his successors.” https://constitutionalism.wordpress.com/2008/07/23/can-the-president-pardon-people-who-havent-been-charged/

MULTIPLE OFFENSES

In the cases of Nixon and Weinberger there was a somewhat specific event for which pardons were issued – I mention this for contrast – I am not in any way condoning the actions of granting pardons in either case. Hillary Clinton’s potential charges are not specific to a one time event, there are several separate categories.

According to Breitbart News, there are 7 potential charges that Hillary could likely face:

  1. Perjury
  2. Obstruction of justice
  3. Bribery
  4. Pay for play
  5. Illegal use of a non-profit organization
  6. Racketeering
  7. Fraud
  • There’s also, ‘keeping classified documents in an unsecured location’, for which David Patreaus was convicted and the much more serious charge of ‘concealing documents from government computers,’ according to Judge Andrew Napolitano, who also said that Clinton turned the Federal Records Act “on its head.” Via Fox News Insider.

That’s a lot of stuff to fit into the average pardon box, it’ll be interesting to see if and how President Obama will square that circle and sell it to the American people. There are essentially two sets of criminal actions, first is her home-brew server case regarding classified documents and the handling and storage of such, then there is her affiliation with the Clinton Global Initiative and how she raised money from foreign sources for the non profit organization while Secretary of State.   http://www.breitbart.com/2016-presidential-race/2016/10/31/top-7-charges-hillary-clinton-could-face-while-president/

PRECEDENT

There is no doubt that Obama will use Nixon and Weinberger’s respective pardons as precedent in crafting a preemptive pardon for Hillary Clinton, the question is will he be able to package it and sell it without further damaging whatever legacy he has left? I wonder if the constitution set any limits on the number of crimes eligible for ‘bleach bit’ in a preemptive pardon – don’t be shocked if a never before seen version of the constitution miraculously surfaces in Philadelphia containing such a clause… somewhere tucked in between the ineligibility and qualification clauses. 😉

 

 

main photo credit: Reuters