There is little doubt in the minds of the American public that Hillary Clinton probably broke a law. After all, she seems to have little reason to abide by it. In fact, she may be the first presidential candidate to be interviewed by the FBI as often as she is by the media.
More recently, the FBI has reopened the investigation into wrongdoing by Hillary and her aides after the FBI stumbled upon thousands of additional State Department emails that may have been improperly shared after investigating a separate incident involving disgraced former congressman (and estranged husband of Hillary’s closest aide, Huma Abedin) Anthony Weiner and his involvement with underage women.
Although the FBI has determined (perhaps politically) no wrongdoing by Clinton there either, it’s unlikely the illegal activity surrounding Hillary’s emails — and the fraudulent nature of the Clinton Foundation — will keep her off the radar of law enforcement.
Yet, if Hillary is elected as some polls suggest, the bigger question on the minds of so many Americans is what happens if Hillary did break the law? Can she be indicted? Can she go to jail? Can she pardon herself? To get answers, I sat down with one of the most informed individuals on such matters, Bruce Fein, constitutional scholar and former associate deputy attorney general under President Reagan.
Q & A with Bruce Fein
JG: Could “President Hillary Clinton” be indicted if law enforcement concludes she broke the law?
BF: This question was litigated during the Nixon/Watergate era. The courts concluded that a sitting president, unlike a member of Congress or a judge, could not be indicted. Since the president is the executive of an entire branch of the government, it would effectively shut that branch down. It would be in direct conflict with the Constitution.
However, like they did with President Nixon, Congress has the ability to impeach a president, and if they do so successfully, then the president can then be indicted.
That being said, it would be nearly impossible for the Justice Department to indict a president. Since the president has the authority to fire any individual in the executive branch without cause, any U.S. attorney willing to indict a President Hillary Clinton would immediately be fired. The case would never make it to a grand jury. A grand jury can’t indict an individual unless it is signed by the U.S. attorney. Even today, the secretive grand jury process is often ignored by the U.S. attorney’s office for much lesser political reasons. That is one reason the first action by any new president is to fire most of the U.S. attorneys and replace them with their own. When I was with Reagan, we fired most of the U.S. attorneys under President Carter.
JG: If President Clinton were indicted before the election, could she pardon herself as president?
BF: President Obama would never allow Clinton to be indicted. He wouldn’t risk destroying the Democratic Party over an indictment. Even then, Clinton’s indictment would simply be dismissed by the U.S. attorney’s office as soon as she became president.
JG: What are the steps to creating a special prosecutor?
BF: There are two ways:
One, is by congressional enactment, or an independent counsel statute — which Congress allowed to expire in 2000. That statute provided for three judges on the U.S. Court of Appeals here to appoint an independent counsel that runs their own criminal investigation using the FBI and traditional resources that don’t report to the attorney general in cases of clear conflict of interest where the target of the investigation is the president, the upper echelon of his cabinet, or head honchos within a party.
The independent counsels have the right to stay and investigate as long as they wish. Kenneth Star [who investigated President Bill Clinton] was an independent counsel, Congress appropriates money for them; they are the ones who decide to challenge executive privilege and that sort.
The other way to do this, assuming Clinton became president, is by regulation. This was done during Watergate. At that time, there was a vacancy at the attorney general’s office, so the Senate Judiciary Committee told the new nominee, Elliot Richardson, that he was not to be confirmed unless he agreed to various regulations. Those regulations required Richardson to establish a special prosecutor; it had to be Archibald Cox, and he had to have a special jurisdiction. Otherwise, you’re not going to be confirmed. So, he said ok.
That process could happen under a Clinton presidency, too.
JG: So, in Clinton’s case, it would really be up to Congress to establish a special prosecutor?
BF: Yes. Congress can establish a special prosecutor that can hold grand juries, report to the judicial branch, and even, be called before Congress to testify. They are just like the U.S. attorney’s office except they can’t be fired by the president.
JG: The special prosecutor can go after anyone around the president, but not presidents themselves since they are immune from indictment?
BF: No, the special prosecutor can certainly go after the president. Except, instead of indictment, any facts established in the investigation of the president can be used by the House of Representatives in an impeachment proceeding.
JG: Given your knowledge of impeachments, what do you think might happen to Clinton?
BF: Well, unless there is an independent counsel or special prosecutor, nothing is going to happen. It’s possible that some of the aides around Clinton get indicted. If there is a special prosecutor, I would imagine that would make its way to being considered by the House of Representatives.
Now, there is another argument some make about impeachment. Clinton could say that she broke the law as the secretary of State, but impeachable offenses are only actions undertaken while being president.
That argument would have to be voted on by the House, but I don’t think it’s a persuasive argument. Impeachment is like a preventive measure — it’s simply a statement that we just don’t trust this person with the reins of government, showing past behavior.
JG: Given your experience working on the impeachment proceedings against President Nixon, do you think Clinton’s actions warrant investigation by a special prosecutor if she becomes president?
BF: I don’t think the level and pervasiveness of wrongdoing that we expect of Clinton was on the level of Nixon. In part, she was secretary of State, but presidents can do everything, and President Nixon was doing everything. He was ordering the IRS to do stuff, breaking into offices, threatening the TV and radio licenses of media organizations if they were critical of him.
However, the most disturbing things about Clinton are that she placed herself above the law, very recklessly. She was secretary of State, and she had information that belonged to the government. The public confidence in the administration of justice is at its zenith at these highest levels. Moreover, we’re speaking about someone who was in the White House for eight years, has been through impeachment once with her husband, she was in the Senate for eight years, so she knows better. Yet she treated the whole thing with disdain.
When Alexander Hamilton was explaining what the nature of an impeachable offense was in Federalist Paper 65, he said it wasn’t necessarily a crime, but a crime against the Constitution — a crime against society because you shake confidence in justice and fairness. That is what Hillary Clinton has done.
JG: If you were to advise Congress on how to handle potential crimes committed by Hillary Clinton, if she became president, what would you tell them?
BF: I would suggest Congress immediately start having hearings on a proposed Article of Impeachment. It should be Congress that conducts the investigation. It’s their responsibility. The reason why Watergate worked is because Congress did their own investigation, and it was on TV, and the American people could see it.
All the grand jury stuff is secret. And one of the reasons why, in my judgement, the Bill Clinton impeachment failed is because all the really serious parts of the investigation were all secret. All the American people heard was Kenneth Star sitting and reading a piece of paper.
The House of Representatives has all the investigatory tools that the U.S. attorneys have: They can issue subpoenas, issue depositions; they can investigate it all in secret (via Executive Session) if they choose, they can issue immunity grants through the courts — and do all this investigation on their own that would allow them to come to their own conclusion whether to impeach Clinton or not.
JG: Do you think Clinton’s actions warrant Congress to take these steps?
BF: I’m not in favor of impeachment for the sake of impeachment. I’m in favor of impeachment in order to maintain the integrity of the principle of law. What persuades me to this conclusion isn’t to downplay the magnitude of the wrong. It’s that we do not give conclusive weight — but very strong presumptive weight — to the majority vote.
If she wins the election, we’ll need to have a very high threshold of wrongdoing to effectively overturn a popularly elected president — especially since these were acts committed before the American people voted, and when most of us knew what was going on but still elected her. (For more from the author of “What Can We Do to Indict Hillary Clinton, One of the Most Corrupt Politicians in History?” please click HERE)
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