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With a show of supposed “kindness,” Trump could make Hillary’s life a lasting mess.
I’ve put the prediction below on Facebook, and it seems to be raising interesting discussion, so I might as well post it here too. I don’t think that it’s anything that the Trump Administration wouldn’t figure out on its own. Here’s my original post with some minimal editing:
Prediction: On his first day in office, as he will mention in his inaugural address, one of President Trump’s first actions will be to pardon Hillary Clinton for any crimes she may have committed over the past eight years. He’ll do so “in the name of healing the country.” And people will buy it — they’ll accept that this is his reason for it and will celebrate it wildly. It will be considered a bold and courageous and statesmanlike act — even though it costs him nothing and he couldn’t win any prosecution anyway. But it WILL strip her of her Fifth Amendment right not to be forced to incriminate herself if she’s called into testify anywhere. (She can still refuse to testify in a trial of, say, one of her closest aides — but for that she could face punishment.)
I’m just setting the marker down right now publicly so you’ll know what’s coming. The more you make his not prosecuting Hillary into a big deal, the greater the opportunity he has to look like a statesman.
(By the way: If anyone else has already made this prediction, I haven’t seen it and I’m not copying them. I’m not really inclined to watch or read the news right now, as it’s filled with the thoughts of people whom no one should listen to about anything, ever again.)
The discussion has been pretty interesting. I’m not going to quote people by identity, but will quote some comments.
1. Could Hillary refuse the pardon?
She could try, but it wouldn’t likely make any difference. A “blanket pardon” is a strange creature, most famously used to by President Gerald Ford to benefit Richard Nixon. (Nixon never officially confessed to any crime — although who are we kidding here?)
“I was a second year law student at the time [of Nixon’s pardon], and the pardon was discussed in my constitutional law class. I think the conventional wisdom was that the pardon absolutely precluded any criminal prosecution of Nixon for any crimes he might have committed while in office. So there would never be an occasion for him to have to actually confess to anything.”
An opposing view is that Hillary could still be charged — with something — and that she’d have to admit guilt for the pardon to “kick in.” I don’t see much to support that. A prosecutor would not likely go after her anyway — although if she refused to comply with a congressional or other subpoena after the pardon, she could still be charged for that.
As I said on FB, “a pardon is effective whether or not you accept it. This would only come to a head if they tried to make her testify under immunity against her will; then maybe she could get out of it.”
2. How do you pardon someone who has been proven to be innocent?
This is an excellent example of “begging the question” — has Hillary been “proven to be innocent”? Of what? That last question points to the real problem — I don’t think that Trump or most of his followers have any serious idea of what she’s supposedly guilty of, though they’re sure that she’s guilty. You may recall this from your childhood encounters with the Alice in Wonderland books.
The people celebrating Trump’s win are chanting “send her to prison,” so they may not agree with your assessment of “proven to be innocent.” I don’t even know how one makes such a claim when one isn’t even clear on the charges being lodged.
3. But there’s been no evidence to even warrant a trial!
This wouldn’t start with a trial, but with an investigation, which would require compelled testimony. She would not want to be compelled to testify, even if she is blameless.
As for whether there is evidence, I don’t see it either, but I have little doubt that a prosecutor could easily make a case to a grand jury for indictment on something. I haven’t read all of the leaked emails, but I expect that some of them contain evidence that could conceivably justify charges — and as will Bill Clinton getting him into the legal process is much more important than how that process turns out.
“But in the last 20 minutes or so of Comey’s hearing some things were explained to him about procedures for classifying and he back off of his earlier claim!”
The law in some of these areas is either not settled or not followed. In any event, if the “crime” they went after her for involved the email server, the crime wouldn’t depend on classified documents having leaked — but on operating an unapproved system from which classified documents COULD BE REASONABLY FORESEEN to have leaked.
It’s sort of like how you can be prosecuted for DUI even if he didn’t hit anyone or anything or give the appearance of driving recklessly. Unlawfully putting yourself in the position of having diminished capacity to drive — or to keep classified information secret — is the root crime, regardless of what happened later. (This is one way how criminal negligence differs from civil negligence.)
4. Hey, let’s have Obama pardon her on his way out!
“Hillary Clinton has already been cleared of charges. Why would the President of her own party pardon someone who had not committed a crime, thereby making it seem as if she had committed one?”
5. Can one even issue a blanket pardon before prosecution or conviction?
That’s what Ford did for Nixon…
” After Ford left the White House in 1977, he privately justified his pardon of Nixon by carrying in his wallet a portion of the text of Burdick v. United States, a 1915 U.S. Supreme Court decision which suggested that a pardon carried an imputation of guilt and that acceptance carried an imputation of confession. “
On September 8, 1974, president of the United States Gerald Ford issued Proclamation 4311, which gave Richard Nixon a full and unconditional pardon for any crimes he might have committed against the United States while president.
It’s a great point. He’s been so thoroughly demonized that all he has to do to tie his critics in knots is just take a light step over a low bar.
I think that the “optics” — including some of his supporters attacking him over it — would seem great for him.
7. Even if pardoned, she could still refuse to testify, right?
“Are you arguing that pardoning her would mean she could be required to testify in some other investigation? But she could be granted immunity, short of a pardon. Or she could be subpoenaed. And she would have the same recourse as anyone else, going to jail during a holding of contempt until the judge determines that she is unlikely to be persuaded.”
My reply:
Yes, she could be granted immunity short of a pardon, but (from Trump’s perspective) why? He doesn’t want to actually put her in jail. (Their daughters are friends!) What Trump cares about is looking good — magnanimous — while not having to prove any of his loose allegations. People understand what a pardon is; they don’t understand “immunity.” So a pardon makes more sense.
Yes, if she can’t be punished for anything she did from 2009 through 2016, then she could be subpoenaed and forced to testify without invoking her Fifth Amendment rights. And yes, her recourse is to refuse to comply, taking a moral stand and going to jail — but Maya, does THAT sound like Hillary to you? She’s lose that PR battle, because it would be one about legal procedure rather than substance: “Why won’t she testify?” as opposed to “why should she HAVE to testify?” This is all the more true if she’s brought in as a witness in a trial over an associate of hers in which she’d be a material witness.
I don’t see any way out for her. If it were someone else, they’d take the path of Uncle Jun Soprano and feign various illnesses. But I don’t think that she’d want to give up her legacy — and seem weak. Nor do I think that she’d be willing to go to jail. Her best bet might just be to delay, delay, delay and hope that Dems win in 2020.
In case it’s not clear, I’m not arguing that any of this is right or fair. It’s obscene, regardless of what extent she contributed to it. But this sort of “pardon then torture” is what I think the Trump Administration will come up with — partly due to sheer sadism. Maybe Chris Christie will be given the cabinet position of “Secretary of Tormenting Hillary Clinton.”
8. If Trump pardoned Hillary, and she had not been charged with anything, wouldn’t that kind of make him look like even more of an idiot?
Why — and in whose judgment? Anyone he’d care about?
I’m sure that he would be criticized. But it would blunt the demands of his supporters demanding Hillary’s head on a stick — and it would SEEM so statesmanlike that his supporters would, regretfully, come around to it.
We’re in a Kafka/Orwell world now, things don’t have to make sense. (Actually, many Americans have been in that world for a long time — just generally not ones as prominent as Hillary.)
9. She’ll refuse it: period
She can say what she likes. The effect of a pardon is that the federal government won’t try to prosecute her for anything she has supposedly done within the time period covered. Its effect would be to allow Trump to seem magnanimous while at the same time absolving him of the burden of actually proving any charges against Hillary. Doesn’t that sound like Trump to you?
Meanwhile, what would Hillary do — demand to be tried on unspecified charges? Does that sound like *Hillary* to you?
10. You give him WAY too much credit. He is an incompetent.
He’s surrounded by people who aren’t. Chris Christie made his name doing dastardly shit like this.
Look, TRUMP’S LAZY! Not prosecuting Hillary gives him an out. How do you not prosecute her when his followers are howling for it? Give her a blanket pardon for the good of the country. It’s not rocket science.
“That would enrage his followers. Plus he has a vindictive personality. Don’t see it at all.”
Pardoning her and then compelling Congressional and witness testimony would be MUCH worse for her than prosecuting her with a bullshit case.
As for his followers, they’d either get it or he’d ignore them. (He doesn’t really need them until 2020, by when other issues would have supplanted this one.) And being deserted by some of his followers would make him look more moderate — ingratiating himself to the media.
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OK, that’s some of what I and my totally brilliant but often contrary online friends have had to say on this topic. What do you have to say? Can you see “Magnanimous Donald” doing this? And how would his followers respond?
By the way, I’ve published this because I’m trying to get my arms around the concern of what a Trump Administration will actually look like — and be like — and I find that “confronting the real” like this helps me do so. For the record, I do not think that, based on what I know, Hillary Clinton belongs in jail. (Dick Cheney, yes.) But a lot of people do — and part of our struggle in the next four years is to pay attention to them, because they do seem to matter! (Who knew? Well, we have been mentioning that here for a year and a half…..)
I initially put the FB post in a comment here, before the quality of the commentary there made me decide to make it its own story. While it was a comment, though, Big Box posted this reply to it.
*Doing his worst to Hillary? Really? He has already done his worst to Hillary, by showing a complete lack of respect on the debate stage. Not to worry, that only pissed off 62 million people plus all their underage family members. But as Butch Cassidy said:
“I have vision and the rest of the world is wearing bi-focals!”