Will Hillary Clinton Pardon herself?
The American Bar Association [ABA] reported today that consideration was given to a pardon for Hillary Clinton by President Barack Obama, and perhaps even what the ABA called a “self-pardon” that a newly elected Clinton president could bestow on herself, but that the need for a pardon disappeared when the FBI reported on Sunday that she should not be prosecuted.
But that is not necessarily true, says public interest law professor John Banzhaf, who was one of the first to suggest that Clinton could constitutionally pardon herself, and who has published an exhaustive analysis of the legal problems potentially created by this unique election, including self-pardons, rogue electors, unconstitutional impeachment efforts, and other things.
There is clear precedent for a president to grant a “full, free, and absolute pardon” “for all offenses against the United States” without naming the offenses; that’s what Lyndon Johnson did for Richard Nixon in order to prevent further “prolonged and divisive debate.”
However, his action was seen as controversial and divisive, and may have used up valuable political capital and weakened his presidency. However, if Obama does the same forHillary Clinton just before he leaves office, it would not impede or undermine what he had already accomplished.
Obama may be strongly motivated to issue such an open pardon if Donald Trump is elected.
Trump, in prejudging her situation, repeatedly opined that Hillary Clinton had committed serious crimes and should be behind bars. Since he is unlikely to change his mind if elected, and the person chosen as his new attorney general is likely to share his strong feelings, Obama may feel that a complete pardon for Hillary Clinton is clearly necessary to avoid an oppressive an unfair prosecution of the former Secretary of State.
On the other hand, if Hillary Clinton is elected, Obama might not see a need for her to be protected from prosecution from a Justice Department headed by her own hand-picked attorney general who would be serving at her pleasure, and therefor subject to her direct control.
That why the ABA dropped the issue of whether or not she could legally pardon herself, after noting that both Professor Banzhaf and Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals asserted that a self-pardon would be constitutional.
Posner wrote that “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.” Judge Posner added that it was unlikely the Supreme Court at that time would be “bold enough, in the teeth of the constitutional language, to read into the pardon clause an exception for self-pardoning.”
But Banzhaf notes that there are several reasons why Hillary Clinton may wish to pardon herself even if she wins, and if Obama does not himself issue a pardon for her.
If no pardon has been issued, it is possible that she might be subject to extensive criminal investigation and possible prosecution when she leaves office.
This could be after four years if she is not re-elected, or if for health or other reasons she chooses not to run again. It could also happen if ill health or other events forced her from office earlier.
Indeed, if she had a stroke or otherwise suddenly became impaired, and could not perform the functions of the presidency, she might lose any opportunity to issue a pardon to herself, and would have to depend upon whomever might succeed her – who, for the same pressures which Johnson experienced, might be reluctant to provide her with this added measure of legal protection.