Her defenders, including U.S. President Barack Obama, contended that no harm to the U.S. had resulted from her actions and that the FBI had exonerated Clinton when FBI Director James Comey announced on July 5 that the bureau was ending its probe of Clinton’s email practices and not recommending prosecution.
Since the standard of culpability regarding the mishandling of classified information is so broad and does not require intent, Clinton’s critics were quick to argue that the Obama Administration had covered up her misdeeds. Adding fuel to these claims was the fact that Bill Clinton had spoken to Attorney General Loretta Lynch in what was supposed to be a secret meeting, on a tarmac in Phoenix on June 27.
During the campaign, Republican nominee Donald Trump charged that Clinton’s misdeeds had been covered up, often to chants from his supporters of “lock her up.” Comey’s letter to Congress on Oct. 28, just 11 days before the election, that the bureau was reopening the investigation as a result of the discovery of 650,000 emails from an unrelated investigation, and the subsequent announcement on Nov. 6, that the FBI’s review of those email had not “altered their previous conclusion,” was criticized by Clinton’s supporters as an unprecedented interference by the FBI in an election and was blamed for Clinton’s subsequent loss.
The issue of a pardon didn’t specifically come up during the election, although it was always hanging in the background. At the Alfred E. Smith Memorial Dinner in New York on Oct. 20, Trump joked that Clinton had accidentally bumped into him and said pardon me, to which Trump claimed he replied. “I’ll think about it.”
It was widely speculated, however, that regardless of the outcome, Obama would pardon Clinton to protect her from Congressional investigations or Justice Department prosecution.
U.S. presidents have broad powers under Article 2 Section 2 of the Constitution to issue pardons. The Supreme Court has ruled that these powers are quite broad and include commutation of sentences and restoration of fines and forfeitures. Around 20,000 presidential pardons were issued in the 20th century.
Franklin Delano Roosevelt is the all-time leader, with 3,687 pardons over a 12-year period. By comparison Bill Clinton issued 456 pardons, including 140 on his last day in office, which included one for fugitive financier Mark Rich. George W. Bush issued 176 pardons. To date, Obama has issued less than 100 pardons, although more are presumably coming before he leaves office.
Pardoning Hillary Clinton poses both political and legal issues for both current and incoming presidents. Further investigations of Clinton by a Republican Congress, and what will soon be a Republican Justice Department, will become little more than a proxy for refighting the 2016 election. Such actions would be divisive and only serve to continue the bitter divisions and rhetoric that characterized the election.
On the other hand, the fact that other people who have mishandled classified information, in most cases involving a fraction of the instances of Clinton’s mishandling, have been severely punished, only adds to the charges that the Clintons play by a separate set of rules and are treated as being above the law.
From a legal standpoint, the president has broad authority to pardon Clinton even though she has not been formally charged with a crime. Gerald Ford famously pardoned Richard Nixon after he resigned although no formal charges had yet been brought against him and Congress had not yet voted to impeach him.
Moreover, there is precedent for not only pardoning Clinton, but also all of those in her retinue who could be similarly charged. George H.W. Bush pardoned six people who had been implicated in the Iran-Contra case.
The real problem is the Clinton Foundation, which is under investigation by the FBI. Congressional inquiries on the function of the foundation, and whether it engaged in so called “pay-to-play” transactions in which donors to the foundation received preferential access to Hillary Clinton’s state department, are pending.
Moreover, the fact that the foundation spent less than six per cent of its budget on charitable giving while spending lavishly on travel and entertainment, suggests that the foundation is little more than a Clinton piggy bank. The Wikileaks disclosure that the foundation may have paid for all or a portion of Chelsea Clinton’s $3-million-dollar wedding adds fuel to the charge that the Clinton Foundation is a sham. Indeed, critics have charged that the foundation would constitute a criminal conspiracy under U.S. laws.
The issue of Hillary Clinton’s possible culpability can’t be settled by a presidential pardon unless there is also a resolution of the future status of the Clinton Foundation. Presidents can issue pardons for past misdeeds, proven or alleged, but they cannot issue a “Get Out of Jail Free Card” for future misdeeds. It’s hard to see how the foundation can go on under Clinton stewardship and control.
A blanket deal where the president issues a broad pardon not only to the Clintons but all their associates in return for shutting down the Clinton Foundation would probably be acceptable to the Clinton’s critics. The funds in the foundation would be forfeited to the government as part of an overall pardon deal.
Whether the Clinton’s would agree to such an arrangement is unknown. But that is probably the only way to resolve this issue definitively.
Barring a deal, the Clinton’s will just fade away into obscurity, sort of, and continue to fight a protracted rear-guard action against the inevitable investigations that will come from Capitol Hill and the Trump Justice Department.
With Hillary Clinton out of office and no prospects of ever having another one, the Clinton Foundation can forget about receiving any more fat foreign donations. The problem with qui pro quos is that you need a quid to deliver a pro.
None is available now, at least not till Chelsea Clnton runs for Congress. Sorry America, the Clintons are not finished with you yet. Maybe the next generation of Clintons will be better than the last – they certainly can’t be any worse.
Joseph Micallef is a historian, best-selling author and commentator on world politics.