Can President Obama Pardon Hillary Clinton? Will He?

Hillary Clinton, President Barack Obama, and former President Bill Clinton wave to the crowd after a rally on Independence Mall in Philadelphia, Pennsylvania, November 07, 2016. About 40,000 people flooded Independence Mall in Philadelphia. (Getty)

Hillary Clinton, President Barack Obama, and former President Bill Clinton wave to the crowd after a rally on Independence Mall in Philadelphia, Pennsylvania, November 07, 2016. (Getty)

Now that Hillary Clinton has lost to President-Elect Trump, people are wondering: Can President Barack Obama pardon Clinton before he leaves office?

Will he?

Those are two different questions, of course. They have increased currency because, in one of the presidential debates, Donald Trump told Clinton that, if he was president, she would be in jail, and some of his supporters shouted “lock her up” after he won the presidency, although Trump himself avoided such rhetoric in his victory speech. He will likely choose an aggressive GOP prosecutor as Attorney General. Think Rudy Giuliani, Chris Christie (if Bridgegate doesn’t rule him out), or Trey Gowdy, Clinton’s Congressional Benghazi inquisitor.

Although FBI Director James Comey said, right before the election, that he didn’t find anything in Clinton’s emails to warrant charges, a new FBI director might feel differently, especially one pushed by an aggressive Justice Department. Furthermore, there were conflicting reports before the election about whether or not the FBI was investigating the Clinton Foundation for pay to play. That also raises the prospect that Obama could pardon Bill Clinton too.

There would be precedent. Gerald Ford pardoned former President Richard Nixon, an act that was painted as necessary so the country could move on and heal. Obama could cast a Clinton pardon in the same light, and justify it as necessary by saying Trump has prejudged her case for political purposes. Watch Ford’s explanation for pardoning Nixon here:

Others have cited Bill Clinton’s granting of clemency to CIA director John Deutch, who was accused of mishandling classified information, said The Charlotte Observer, which added that no charge had been filed at the time Clinton acted.

Here’s what you need to know:

Can President Obama Pardon Hillary Clinton?

Yes. This question came up even before Hillary lost. Some were arguing Obama should consider pardoning Clinton even if she won to prevent Republicans from tying up her administration with FBI investigations and other inquiries.

The president enjoys broad executive authority on pardons. It’s his call. If President Obama wants to pardon Clinton, he can do it, even if she doesn’t request the pardon.

According to Politico, Obama could pardon Clinton “for any federal offenses she may have committed or could ever be prosecuted for.”

One expert, attorney Samuel T. Morison, told The Charlotte Observer, “The only constraint is that he can’t pardon someone in advance of committing the offense.

White House Press Secretary Josh Earnest was asked if Obama was considering pardoning Clinton, and he dodged the question (see above video). He said:

“Well, as you know, the President has offered clemency to a substantial number of Americans who were previously serving time in federal prisons, and we didn’t talk in advance about the President’s plans to offer clemency to any of those individuals.” Earnest was referring to Obama’s drug sentence pardons and commutations, in part. He said the White House doesn’t talk about the President’s thinking on pardons or commutations.

During one of the presidential debates, Trump told Clinton: “If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation…” He added, “because you’d be in jail” when Hillary countered that she was glad someone like him wasn’t in charge of the laws in the United States. This Trump comment was criticized for, among other things, violating due process. Watch:

You can search a database of Obama’s pardons here.

Will President Obama Pardon Hillary Clinton?

Obama can do it, but there would be political calculations for both sides. To the Clintons, accepting a pardon would tarnish their reputations by implying guilt to some, said Politico. Remember that neither Clinton has ever been formally accused of a crime.

President Obama would face a firestorm of criticism from some were he to grant such a pardon, solidifying voter anger over a so-called elite system “rigged” for insiders. The Democratic Party is looking toward the future and courting some of those voters back, not creating new controversies.

A pardon would also dominate discussions of Obama’s legacy, which he would probably prefer to revolve around other things. Finally, there’s been no love lost between the Clintons and Obamas at times (remember the bitter Democratic primary), although the President and First Lady did hit the campaign trail for Hillary.

Furthermore, Trump seems to have hedged some of the throw her in jail rhetoric since winning, and he might just move on to focus on other things. There’s also the question of whether Obama would want to pardon someone for whom there could be legitimate wrongdoing (that is far from clear, of course).

Indeed, Obama’s press secretary drew the media’s attention to the observation Obama made in the Rose Garden about the “tone” that Trump displayed in his remarks in his victory speech on Tuesday night, saying, “The President expressed hope that that kind of tone would continue. That’s relevant because we have a long tradition in this country of people in power not using the criminal justice system to extract political revenge.”

That seems to imply that Obama will consider a pardon if Trump jacks the rhetoric back up about prosecuting Clinton and putting her in jail, but that he thinks he might not be necessary if Trump’s tone remains conciliatory.

What’s the Precedent?

Ford’s pardon of Nixon is brought up a lot in this context. According to The New York Post, Ford’s 1974 pardon of Nixon was “for any crimes Nixon might have committed against the U.S. while he was president.”

Ford felt that “a long, drawn-out trial” of the former president would have been harmful to the nation, said The Post. Nixon had not been formally charged with any crime when Ford pardoned him, and the pardon was criticized at the time.

Ford said Nixon was an “American 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.”

As for John Deutch, the CIA director granted clemency by Bill Clinton, The Daily Caller says he was accused of “improperly keeping classified information on personal laptop computers.” Clinton pardoned him in 2001 just as he was about to work out a plea deal, said The Daily Caller.