A Pardon for Clinton <br>Could Turn Out To Be <br>A Mixed Blessing
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
President Obama doesn’t need his phone for this job — just the pen. With but a stroke of it, he could pardon Hillary Clinton for any crimes she may have committed in E-mailgate and spare the rest of us the long drama.
At first blush that might seem ridiculous. Though the press is rattling on about how the former secretary of state has broken all sorts of federal laws in connection with her e-mail, Clinton hasn’t been formally accused of anything.
That doesn’t mean that she couldn’t get a presidential pardon. Richard Nixon hadn’t been indicted of any crime when President Gerald Ford gave him a pardon. Nor had most of the Vietnam-era draft dodgers that President Jimmy Carter pardoned (on his first day in office).
Fact is that the pardon is the least-fettered presidential power. The president can pardon anyone for any offense against the United States, save for treason. He doesn’t have to get the consent of the Senate. He doesn’t have to get it cleared by a federal judge.
Nor does he have to run it past any prosecutor or even the attorney general. He could write it out by hand on a napkin, and the deed would be done. He could do it the way Hillary Clinton’s husband did it in respect of Marc Rich.
Bill Clinton pardoned the fugitive financier without going through the usual pardon review at the Justice Department and over the fuming objections of the prosecutors. He just had Eric Holder write it up. Then Mr. Clinton signed it.
Let the Devil take the hindmost.
Ah, there’s the rub. Would Hillary Clinton want a pardon? It would, with the election bearing down, put her under a cloud, with no way to clear herself in court. If she’s innocent, better to let a jury, proxy for the rest of us, come to that conclusion.
A jury, though, could convict her, maybe under Title 18 Section 2071(b) of the United States Code. That was cited by a former Justice Department official, Shannen Coffin, in an interview with Megyn Kelly of Fox News.
Not only does the law set up to three years in the big house for anyone who conceals or destroys any government record, document, paper or “other thing.” It also says that such person shall be “disqualified from holding any office under the United States.”
The same title of the United States code has another section, 1001, that sets a sentence of up to five years for anyone falsifying, concealing or covering up a material fact in “any matter” within federal jurisdiction. It could be eight years if the matter involves international or domestic terrorism.
Such laws are too broad for my taste. Section 1001 figured in at least part of what I see as the unjust prosecutions of, say, Scooter Libby and Martha Stewart. In a different case, Justice Ruth Bader Ginsburg worried about the section’s “sweeping generality.”
All the more reason to think about a pre-emptive pardon for Hillary Clinton. It’s hard to think which is more unsettling — Hillary Clinton destroying e-mails that might bear on, say, Benghazi. Or prosecutors using vague laws to go after a politician in the middle of an election.
The American Founders worried about abuse of the pardon power. In 1788, at the Virginia ratifying convention, George Mason warned against giving the president a power to “pardon crimes which were advised by himself.”
Could Hillary Clinton’s misdeeds in Benghazi be such a crime? That is, could President Obama have his own interests in a Benghazi coverup? Then again, he could have an interest in mere political mischief.
After all, it seems that Mr. Obama likes Mrs. Clinton about as much as he likes Benjamin Netanyahu. He’d no doubt prefer to see someone like, say, Elizabeth Warren in the White House. So he could solve two problems with one stroke of the pen.
He could issue the pardon to Mrs. Clinton, putting her under a cloud even while lifting the threat of prosecution. Mrs. Clinton would always have a fallback position if she thought a pardon would do more harm than good: She could refuse it.
The Supreme Court tends to view a pardon as an act of grace that can be spurned. The record is not entirely uniform, but that’s the gist of it. So a pardon would put the would-be candidate in a position of having to do something she resists: deciding.
This column first appeared in the New York Post.