Editor’s (quick) note: If Hillary Clinton is indicted will there be a constitutional crisis? – one of the nation’s top legal experts weighs in below.
Pardons by Clinton or Obama, Impeachment, Faithless Electors, All Possible
WASHINGTON, D.C. (November 3, 2016): If Hillary Clinton is indicted – reportedly unlikely, and virtually impossible for it to occur before the election – such an unprecedented situation could create a variety of confounding constitutional conundrums and other problems which legal scholars are only beginning to wrestle with, says the lawyer who helped get the special prosecutors which led to President Nixon’s downfall.
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constitutional crisis in England circa 1936
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“This highly unlikely scenario, one growing out of a separate kiddy porn investigation, has the potential to create several different possible constitutional crises as serious as Watergate,” argues public interest law professor John Banzhaf, whose legal action seeking a special prosecutor for the Watergate situation led to the appointment of two of them, and subsequently to Richard Nixon’s resignation.
To begin with, if Clinton is indicted – indeed, even before she is indicted – President Barack Obama could, while he is still in office, pardon her for any and all federal crimes she may be committed.
There is clear precedent. In September of 1974, President Gerald Ford gave Nixon a full and unconditional pardon for any crimes he may have committed against the U.S. while president.
His reasoning, which Obama may find persuasive, is that it was in the best interests of the country to put the situation behind us. Ford claimed it was “a tragedy in which we all have played a part. It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must.”
A win by Donald Trump would create major legal risks for Clinton since it would greatly increase the chances of her indictment, and eventual conviction, because Trump has announced that he has pre-judged her guilt, and believes she should be in jail (actually prison).
Thus, anyone appointed as Attorney General would probably have to share Trump’s views regarding Clinton. Moreover, if he were unwilling to press as hard as Trump wished, he would be serving at Trump’s pleasure, and can be fired for disobeying even a legally-dubious order to insure her conviction.
There is also clear precedent here. In what is called the “Saturday Night Massacre,” President Nixon forced the resignations of Attorney General Elliot Richardson, and then newly-appointed Attorney General William Ruckelshaus, when they each refused to go along with Nixon’s attempt to scuttle a subpoena issued against him by a special prosecutor.
If, however, Clinton is indicted after winning the election but before being inaugurated, she would not then automatically gain immunity from prosecution, but her lawyers could almost certainly stall the trial until after she became president.
During that period of time, it is also very unlikely that the lame-duck House would hold hearings and stage debates to try to impeach her (i.e., charge her with wrongdoing) since she could not be removed from an office (i.e. convict her of the impeachment) she didn’t yet hold.
But another real threat if she were indicted is that electors pledged to her might decide, in view of the drastically altered circumstances, not to cast their electoral votes for her.
Constitutional crisis – Electoral College
These so-called “faithless electors” – members of the Electoral College who do not vote for the candidate whose election they stood for – have never changed the outcome of a presidential election, but there have been more than 150 such incidents in our history.
Although laws in about 30 states purport to insure that state’s electors will cast their electoral votes in accordance with the votes of a majority of the state’s citizen voters, these laws have never been enforced, and there is strong reason to believe they are unconstitutional.
For example, a federal judge recently held unconstitutional Virginia’s statute that provides criminal penalties for delegates to party conventions who do not follow the results of the presidential preference primary, saying that the statute “exceeds the powers retained by the Commonwealth of Virginia under the Constitution of the United States and cannot be enforced.”
In other words, Virginia (and perhaps also other states) probably cannot punish Electoral College electors who may cast their electoral votes for a candidate other than Clinton.
In 1952 the Supreme Court did uphold the constitutionality of state pledge laws, although not the constitutionality of punishing actual unfaithfulness. Indeed, it did not even suggest than any court could determine – or force – how an elector would have to vote, and many scholars say that no court would ever issue such an order.
This is especially true here because many if not most of these laws were designed to protect the interests of the state political party, and not the interests of a specific candidate.
So, if the Democratic Party persuades at least 270 Clinton electors to cast their votes for a substitute (e.g., Kaine, Biden, etc.), there would be a Democratic president other than Clinton.
However, if only some but not all Democratic electors declined to vote for Clinton, and as a result there was a deadlock or if no candidate received a majority, a “contingent election” is held.
The election of the President then goes to the House of Representatives, where each state delegation casts a single vote for one of the top three contenders to determine a winner. This has actually happened two or three times.
Constitutional crisis – if Clinton elected
If Clinton does become president, it would appear that she can legally pardon anyone, including herself, even before there is a trial or even an indictment.
While there are arguments that, although the president’s power to pardon for federal crimes is virtually unlimited, no person can be permitted to pardon herself, these arguments seem weak.
Moreover, if Clinton were inaugurated and then did purport to issue a pardon to herself, it is doubtful that any potential plaintiff would be found to have legal standing to contest it in court.
This, of course, would not preclude Trump or others from claiming that the pardon is invalid, and possibly precipitating some type of crisis.
If Clinton becomes president and is subsequently indicted but does not issue herself a pardon, it is not clear if she can then be forced to undergo a trial. Many scholars argue that a sitting president cannot be tried, although some disagree.
The Justice Department opined, in a memo from the Office of Legal Counsel in 1973, and another from 2000, that a sitting president cannot be prosecuted, at least as long as he remains in office.
A White House attorney once suggested to the Supreme Court than a sitting president cannot be prosecuted, since a president who controls prosecutions cannot himself be subject to one.
But the Supreme Court subsequently upheld the law which authorized the appointment of special prosecutors who might then have such power, even over presidential opposition. The Supreme Court also held that President Bill Clinton did not have even temporal immunity from a civil law suit.
Moreover, precedent suggests that Clinton could not be impeached and removed for office based upon events which occurred prior to the time she assumed office because, historically, alleged crimes committed before a president takes office were never considered impeachable offenses.
At least that was the conclusion of Congress dating back to the latter half of the 19th century. although the Constitution does not spell out any such limitation.
Or, as Gerald Ford famously said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
Constitutional crisis – what would Congress do?
But if a heavily Republican Congress – and it would take an overwhelming percentage since she could be removed from the presidency only if two-thirds of the Senators agreed with House’s bill of impeachment – tried to remove her from office based upon pre-inauguration wrongdoing, and/or she refused to leave, there could be a constitutional crisis.
However, if they tried to convict her for allegedly committing new crimes such as obstructing an investigate or lying under oath about it, or if they simply tried to harass and/or otherwise embarrass her with numerous lengthy investigations, they would be on much firmer ground.
Needless to say, some of the scenarios above could easily blow up and create a constitutional crisis, especially since so many people apparently believe that the election is already “rigged” – for Clinton and against Trump – and Trump has strongly hinted that he would fight anything which might purport to hand the presidency to Clinton.