In dashing through his last few weeks in office, will one of Pres. Obama’s final acts be to pardon Hillary Clinton for any violations of federal law she might have committed while she was secretary of state?
It’s an interesting and complex question.
We should first note that the Obama administration’s decision not to prosecute Mrs. Clinton would not bind the Trump administration.
Until relevant statutes of limitations have expired, she could still be prosecuted by the new administration. It is possible in my opinion for Clinton to be prosecuted for either her improper handling of classified information on “home brew,” or allegations of “pay to play” arrangements between the secretary of state and donors to the Clinton Foundation, which could constitute bribery.
The statute of limitations for most federal crimes is five years from the commission of the offense; that would apply to the two categories relevant to Mrs. Clinton. Her tenure as secretary of state ended Feb. 1, 2013, so it is possible that the statute of limitations will not run until Feb. 1, 2018, more than a year after Mr. Trump takes office.
What looks like one question—will the president pardon Mrs. Clinton?—turns out, on analysis, to be two. The first question is: Would Mrs. Clinton wish to receive a pardon?
But there is a downside, and it isn’t trivial. A pardon must be accepted by the person who is pardoned if it is to effectively stymie any prosecution.
Furthermore, there is solid legal precedent that acceptance of a pardon is equivalent to confession of guilt. A U.S. Supreme Court case from 1915 called Burdick v. U.S. establishes that principle; it has never been overturned.
If acceptance of a pardon by Mrs. Clinton would amount to confession of guilt, would she nevertheless accept it? A multitude of factors would go into her decision.
She, together with her attorneys, would have to decide how likely it is that the Trump administration would prosecute her, and, if they did decide to prosecute, how likely it is they would be able to prove she had committed crimes.
If Mrs. Clinton decides that, everything considered, she would prefer to receive a pardon, she would no doubt be able to convey that message to Pres. Obama, and then the ball would be in his court. Thus, the second question is: Would Pres. Obama grant Mrs. Clinton’s request for a pardon?
Because acceptance of a pardon amounts to a confession of guilt, the acceptance by Mrs. Clinton would, to a degree, besmirch both Mrs. Clinton and also Pres. Obama. After all, Mrs. Clinton was Pres. Obama’s secretary of state. If she was committing illegal acts as secretary, it happened literally on his watch.
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