Matthew T. Mangino
November 11, 2016
In 1974, President Gerald Ford, the only person ever to assume the presidency without getting elected president or vice-president, pardoned his predecessor Richard Nixon. Nixon had resigned in the shadow of the Watergate investigation making way for Ford.
Some speculate that Ford’s pardon of Nixon cost him the chance at getting elected president in 1976, when he lost to Georgia Governor Jimmy Carter.
As Hillary Clinton faces the prospect of renewed investigations into her email accounts, the Clinton Foundation and the pledge by her opponent President-elect Donald Trump to put her in jail, President Barack Obama has a decision to make. Does he pardon Hillary Clinton?
He has no concerns with re-election. His career, at least as head of the executive branch of government, is over. His presidential legacy is on the line, but if Trump is true to his word, most of Obama’s achievements as president are soon to be dismantled.
After Election Day, White House press secretary Josh Earnest left open the possibility that President Obama could grant a pardon to Clinton, though he said the president was hopeful President-elect Trump would follow long-standing tradition of not punishing political opponents through the criminal justice system.
“For Obama to do that (pardon Clinton) at a moment at which he is the least accountable politically, that would be a little tricky,” Brian C. Kalt, law professor at Michigan State University told the Washington Times. “That said, it would be perfectly constitutional. It’s just the question of whether it’s good politics or not.”
Rudy Giuliani, a leading contender to be Trump’s attorney general told Bloomberg News the U.S. has two traditions that are in conflict with each other. One, he said, is that “we try to get over the anger and everything else about an election after it’s over with and put it behind us.”
“I don’t like to see America become a country in which we prosecute people, you know, about politics,” he said. “On the other hand, there are deep and disturbing issues there ... “
Giuliani went on to say, “That’s a very tough balance and that’s why I don’t think President Obama should pardon her, I think President Obama should leave it to the system we all believe in to determine, is she innocent or is she guilty?”
The pardon power “is unlimited and unreviewable,” former House counsel Stan Brand told Politico. Brand said he doubts Trump will follow through on his threats of a special prosecutor. “If he wants to be president, he’s the president-elect now, he truly has to switch from campaign mode to governing mode,” Brand added. “I’d say good luck to them politically, if (Trump’s team) thinks that’s (prosecuting Clinton) going to advance their agenda.”
Trump has a real dilemma of his own making. His campaign rhetoric included a familiar refrain, “Crooked Hillary.” His supporters frequently chanted “Lock her up.”
Trump issued his pledge to appoint a special prosecutor to investigate Clinton during a national debate with the whole country watching. During one exchange, Clinton said she was glad that someone with “the temperament of Donald Trump is not in charge of the law in our country.” Trump replied, “Because you’d be in jail.”
The idea of jailing Clinton was the cornerstone of Trump’s campaign, his supporters relished in the idea of prosecuting Clinton. According to the Los Angeles Times, “They (Trump supporters) have produced merchandise including T-shirts and bobblehead dolls emblazoned with ‘Hillary for Prison’ or Clinton wearing pinstripes or jail jumpsuits.”
There is hope that cooler heads may prevail. New Jersey Governor Chris Christie, the head of Trump’s transition team, seemed to back away from the threat of investigating Clinton. “They had an enormously gracious conversation with each other on Tuesday night,” Christie told the “Today Show.” Christie added, “Politics are over now. People have spoken. Time to move to uniting the country.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him atmattmangino.com and follow him on Twitter at @MatthewTMangino.
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