Transition 2016

For the Sake of the Nation, Obama Should Pardon Clinton

By Susan Hennessey, Benjamin Wittes
Saturday, November 12, 2016, 12:02 PM

Since Donald Trump’s surprise victory on Tuesday, a question has hung over the fate of his opponent, Hillary Clinton. Will—and should—President Barack Obama pardon her on his way out the door?

White House Press Secretary Josh Earnest refused to answer directly when asked whether President Obama would consider pardoning Clinton, saying that the White House does not comment on the President’s thinking on pardons and commutations but noting that “we have a long tradition in this country of people in power not using the criminal justice system to exact political revenge.”

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There appears to be some degree of confusion within Trump’s own camp as to how the President and President-elect should proceed in this matter: Rudy Giuliani said on November 10th that President Obama should hold back from pardoning Clinton and “leave it to the system we all believe in,” while campaign manager Kellyanne Conway told MSNBC that “we haven’t discussed [the possibility of prosecuting Clinton] in recent days.”

We want to make the case here that President Obama should pardon Clinton even though there is no evidence she has committed crimes—but should do so only if she wishes it. Pardoning Clinton would free the country from a divisive burden and it would actually be a gift to his successor, though Trump and his supporters will likely rail against the faux injustice. And while accepting this offer would carry some risk for Clinton of inadvertently appearing to acknowledge guilt, we would hope she would accept the pardon as a service to the nation.

It is important to be clear that the case for a pardon is not predicated on the idea that Clinton might actually be in criminal jeopardy. All evidence suggests the contrary. FBI Director Comey announced that, based on a thorough review of the evidence, no reasonable prosecutor would charge her based on her use of a private email server. And he reaffirmed that conclusion even in the face of the recently discovered set of emails, which did not in any way change his judgment on the matter. For all the talk of “corruption” at the Clinton Foundation, there appears to be no colorable suggestion of criminal wrongdoing adequate even to open a full investigation of the matter—despite all the smoke and malicious politically-motivated leaks that emerged in the finals days of the campaign.

The trouble is that Trump has made repeatedly clear, that he has no intention of letting facts, or evidence, or standards of proof or predication—not to mention traditional law enforcement independence—get in his way. During the campaign, Trump made clear repeatedly that he regarded her as guilty of crimes. The charge was a central theme of his campaign, in which he frequently presided over large crowds chanting “lock her up” and, in some extreme cases, “execute her.” Trump insisted that the FBI investigation which cleared (though criticized) her was corrupt and rigged. And he has promised to appoint a special prosecutor to investigate Clinton.

In the days since his victory, Trump has done nothing to walk back these promises. To the contrary, he says he does not regret his campaign rhetoric and does not believe it went too far. We thus must take him at his word and at least consider the possibility that Trump intends to use the powers of the presidency to direct investigation and prosecution of his defeated rival for the presidency. This raises a specter that the American tradition has so far eschewed: that incoming administrations might try to prosecute or jail either their predecessors or their opponents.

Eroding this precedent has significant national security implications. Presidents and their staffs often make difficult calls, including some which people believe violate laws. We don’t prosecute them for these calls. Consider, for example, President Obama’s decision to not look backward with respect to potential prosecution of CIA officers or Bush administration figures who had relied on or given DOJ legal guidance on interrogations. As controversial as those decisions were, it assured future intelligence officers they could rely on, and were constrained by, legitimate legal counsel.

Allowing the overtly politically motivated investigation of a person whom the FBI has already cleared, simply because the incoming president has declared her guilty of crimes based on no evidence opens the door to all sorts of investigations by incoming administrations of their predecessors and opponents. This has profound implications for the peaceful transition of power. And declaring someone guilty of a crime, and then ordering an investigation to prove it, is almost a textbook violation of the President’s constitutional obligation to “take care that the laws be faithfully executed.”

Obama should not allow this to happen. And because he is still the President, his pardon is a trump card against Trump on this score. By issuing a blanket pardon for any crimes Clinton may have committed, he can strangle an overtly political investigation in its crib. Doing so would spare the country a deeply divisive wound at a time when the Republic is especially fragile and does not need the additional fault line caused by Trump’s trying to fulfill an irresponsible campaign promise. And Trump and his crew should thank Obama if he does it; pardoning Clinton will spare them from being pressured to either follow through on this reckless promise or risk losing face.

That said, there is at least one big problem with a pardon: It will make Hillary Clinton look guilty of crimes. It will make her look as if she needs the protection of the pardon power to prevent investigation of her behavior. And it risks validating Trump’s insistence that the system is rigged to protect her.

Which leads us to the conclusion that Obama should ask her whether she wants him to do it and be guided by her judgment. Obama should make clear to her that he is willing to pardon her and to issue a statement that he is doing so to protect the integrity of the FBI’s investigation from threatened political interference. He should make clear that his statement will explicitly say that he does not believe she has committed any crimes but that he feels he must extend an unnecessary pardon in order to preserve the tradition of incoming presidents not harassing, investigating, or trying to prosecute those they defeat.

If she declines the offer, he should issue a statement announcing what he did and why and announcing what she did. And she can issue a statement saying she has nothing to hide and is unafraid of further scrutiny. This will at least permit her to clear some of the unfair taint that emerged from a small band of malicious insiders in the FBI. The statement will also serve as a clear official statement condemning any of Trump’s future attempts.

If she accepts it, he should issue the pardon without any reference to her preference along with a forceful explication of his thinking on the subject.

And if she were to ask our opinion, we would urge Clinton to accept the pardon. It is unfair, bordering on cruel, to ask her to accept the insult of being pardoned for crimes no reasonable justice official believes she is guilty of. After a bruising election, an ignoble conclusion to a long career in public service, it is indeed a final insult to injury. But swallowing her pride would be a great service to this country. It would ease the path in moving on, and spare a divided nation further anguish.