– The Hill
“Executive orders barring offshore drilling in most U.S. Arctic waters; an abstention at the U.N. permitting the Security Council to declare all Israeli settlement activity to be illegal and an obstacle to peace; the possibility of further action at the U.N. to formalize the administration’s comprehensive vision of a two-state solution to the Israeli/Palestinian conflict — President Obama is sprinting, not jogging, to the finish line.
In dashing through his last few weeks in office, will one of 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 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 her “home brew” email server 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 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 Donald Trump takes office.
What looks like one question — will the president pardon Clinton? — turns out, on analysis, to be two. The first question is: Would Clinton wish to receive a pardon?
That question seems to be a proverbial no-brainer. Surely, any person who had been in federal government would be eager to receive a presidential pardon, because it eliminates even the possibility of federal prosecution. That looks like all upside and no downside.
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 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 it did decide to prosecute, how likely the administration would be able to prove she had committed crimes.
From Obama’s perspective, the decision to grant or withhold a pardon is a political and a personal one. Legal considerations do not directly arise.
Like all presidents at the end of their terms, he is concerned about the legacy he leaves for history. Does he want his legacy to include a pardon of the secretary of State who served under him during the entirety of his first term in office?
Because acceptance of a pardon amounts to a confession of guilt, the acceptance by Clinton would, to a degree, besmirch both Clinton and also Obama. After all, Clinton was Obama’s secretary of State. If she was committing illegal acts as secretary, it happened literally on his watch.
On the other hand, if the new administration were to prosecute and convict Clinton of crimes committed while she was secretary, that might be an even greater embarrassment for Obama post-presidency.”
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