The Ultimate Lame-Duck Move? How President Obama Could Actually Pardon Hillary Clinton

The American people have a right to know if President Barack Obama will pardon Hillary Clinton after Election Day, and before the next president is inaugurated.

On Friday, the Clinton campaign melted down when Federal Bureau of Investigation (FBI) Director James B. Comey sent a very short letter to the chairmen of the relevant committees in Congress explaining a supplement to his testimony in which he’d said that the FBI had completed an investigation into former Secretary of State Hillary Clinton’s personal email server. Comey wrote: “In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation.” This letter has caused advocates of Hillary Clinton to attack the character of Comey.

News broke over the weekend that the Justice Department has obtained a warrant to review Clinton aide Huma Abedin’s newly discovered emails. Team Clinton has pulled out all the stops and is saturating the news with disparaging statements and implications about James Comey’s competence and motives. Former Attorney General Eric Holder even penned a piece this week in the Washington Post arguing that Comey has made a “serious mistake.”

The most fascinating debate, however, is whether President Barack Obama can wipe the slate clean by pardoning Hillary Clinton.

Law Newz published a piece on October 28, 2016, titled, “If Hillary Is Indicted, President Clinton Could Pardon Herself and Congress Might be Helpless.”

While Comey didn’t indicate how long the investigation could take, it’s pretty safe to bet investigators won’t come to any kind of decision before November 8th. It may even take months for the FBI to wrap up round two of this. So what happens if Clinton is elected, takes office, and then finds her self under indictment? It might not be likely, but it is worth exploring the legal possibilities.

It is Friday, January 20, 2017 and Hillary Clinton has just been sworn in as the 45th President of the United States after narrowly defeating Donald Trump in November. Republicans managed to hold both the House of Representatives and the Senate. A few weeks after winning the election, however, the Department of Justice handed down a multi-count indictment against Clinton over her handling of classified information and her involvement in an alleged pay for play scandal with the Clinton Foundation during her time as Secretary of State. It is a scenario that several of our commentators, and twitter followers have asked us to analyze.

Under Article II, Section Two, the president’s power to issue a pardon for a federal offense is nearly limitless. The Law NewZ site analyzed whether President Hillary Clinton has the power to pardon herself, but a more likely hypothetical is whether President Obama will pardon Clinton regardless of the result of the election.

The power of the president to pardon before a person has not even been charged with a crime has been established by the Supreme Court. This issue came up at the end of the presidency of George W. Bush when the question was raised as to whether Bush could pre-emptively pardon government employees involved in counter-terrorism programs who had not been charged.

As reported by Slate on July 21, 2008:

In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time — regardless of whether charges have even been filed.

The power of President Obama to pre-emptively pardon Hillary Clinton has been established, and under the two likely election scenarios presented below there are reasons to believe that he will.

If Hillary wins the election, it would seem like something Obama might do because he has publicly stated that he didn’t think Hillary’s mishandling of classified information “posed a national security problem.” Remember that Obama reportedly used a pseudonym in emails with Clinton, too. For those two reasons, it seems reasonable to believe that President Obama would issue a pardon to clean the slate and let Hillary take office without the possibility of this legal question clouding her tenure as president of the United States. It would be ethically wrong, but perfectly within the power of a president under the Constitution.

If Trump wins the election, it would also seem like something President Obama might do to protect an elongated prosecution of a former presidential candidate. Again, President Obama would not want this litigated under a Republican administration, therefore it seems like he has a strong motive to pardon under either circumstance.

A reporter needs to ask President Obama right now if he will take a pardon off the table. (For more from the author of “The Ultimate Lame-Duck Move? How President Obama Could Actually Pardon Hillary Clinton” please click HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.