- The Washington Times - Thursday, November 10, 2016

The White House hasn’t ruled out the possibility of issuing a presidential pardon to Hillary Clinton, but legal experts say doing so could leave a cloud of suspicion hanging over the failed Democratic presidential nominee and ding President Obama’s legacy.

During the campaign, supporters of President-elect Donald Trump latched onto the idea of prosecuting Mrs. Clinton over her handling of classified information, with chants of “lock her up” a routine occurrence at the Republican’s rallies.

But with Trump’s surprise electoral win on Tuesday, it’s unclear whether the new chief executive intends to follow through when he takes office in January.

An Obama pardon for Mrs. Clinton would eliminate the possibility of prosecutorial action by the incoming Republican administration, but would surely rank among the most contentious issued by modern-day presidents, said Stephen Clark, a professor of law at Albany Law School in New York.

“I’m sure he wouldn’t want it to be part of his legacy,” Mr. Clark said.

Pardons granted during a president’s lame duck period can be particularly controversial, in part because there is no way to challenge a decision or hold someone accountable, said Brian C. Kalt, law professor at Michigan State University.

“For Obama to do that at a moment at which he is the least accountable politically, that would be a little tricky,” Mr. Kalt said. “That said, it would be perfectly constitutional. It’s just the question of whether it’s good politics or not.”

For a president who has predominantly focused his clemency powers on shortening sentences of those convicted of non-violent drug offenses, it would be surprising to see such a high-profile figure receive a pardon, said Mark Osler, a law professor at the University of St Thomas in Minnesota and a co-founder of the Clemency Resource Center.

“It would be a real departure,” Mr. Osler said. “Hillary Clinton has the money and resources to fight this out. The people President Obama has released do not.”

It’s relatively rare for pardons to be issued before criminal charges are filed in a case, though some recent examples are among the most memorable.

President Gerald Ford’s pardon of former President Richard Nixon came before any charges were brought and was broadly worded to absolve Nixon of guilt of all offenses the former president “has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” Mr. Ford lost his reelection bid in 1976, with the pardon largely believed to have contributed to his loss.

A blanket, unconditional pardon issued by President Jimmy Carter in 1977 ensured that hundreds of thousands of men who dodged the Vietnam War era draft were not prosecuted.

“If he was to do a preemptive pardon for Hillary Clinton, it could be crafted so it narrowly applied to the emails and the server at her house,” Mr. Osler said. “You certainly don’t want to give blanket pardon to someone.”

White House press secretary Josh Earnest on Wednesday left open the possibility that Mr. Obama could grant a pardon to Mrs. Clinton, though he said the president was hopeful Mr. Trump would follow long-standing tradition of not punishing political opponents through the criminal-justice system. He said all clemency actions go through a formal process, and that would remain in place until the end of Mr. Obama’s presidency in January.

Mr. Earnest also said the president was encouraged by Mr. Trump’s “tone” in his victory speech early Wednesday, suggesting that the White House believes it’s an indication that Mr. Trump wouldn’t call for prosecution when he takes office.

Chris Christie, who has headed Mr. Trump’s transition team, downplayed the thirst for prosecution of Mrs. Clinton on NBC’s “Today” show.

“I haven’t spoken to (Trump) about that. I will tell you they had an enormously gracious conversation with each other Tuesday night,” Mr. Christie said. “Again, politics are over now, people have spoken, time to move on.”

Meanwhile former New York City Mayor Rudolph Giuliani, an ardent Trump supporter, said a pardon of Mrs. Clinton would seal Mr. Obama’s legacy as “one of the worst presidents.”

Continuing talk about the possibility of prosecution could goad Mr. Obama into action, Mr. Clark said.

But the idea that Mr. Trump could still be considering retribution against Mrs. Clinton, didn’t sit well with former Democratic candidate Bernard Sanders.

“The idea that in a democracy, in the United States of America, that a winning candidate would try to imprison the losing candidate, that is what dictatorships look like,” Mr. Sanders told CNN on Thursday. “That would be an outrage beyond belief”

With the FBI previously concluding that Mrs. Clinton should not be criminally charged in connection with the email scandal, the issuance of a pardon could leave her in a difficult position.

“If this is something that President Obama issues, it would make Hillary Clinton look guilty at some level,” Mr. Osler said. “It also prevents her from clearing her name in some future proceeding.”

Mr. Kalt said pardons should not always be associated with guilt.

“If the president feels that someone has been the victim of a miscarriage of justice, the pardon power is way to deal with that,” he said.

But the president could seek to temper interpretations that a pardon means Mrs. Clinton was guilty of wrongdoing.

“He could say ‘I’m pardoning her because I think the FBI has already invested this and already reached a legitimate conclusion and there is no reason to waste any more time on this,’” Mr. Kalt said. “If he says it that way, I would think that would take some of the sting out of it.”

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