White House press secretary Josh Earnest raised some eyebrows on Wednesday when he engaged on the question whether President Obama would pardon Hillary Clinton before leaving office. Earnest did not indicate that the president had made any commitment one way or the other, but the fact that he is clearly thinking about it is intriguing.
The question primarily arises because there is significant evidence of felony law violations. These do not only involve the mishandling of classified information and the conversion/destruction of government files (i.e., the former secretary of state’s government-related e-mails). It has also been credibly reported that the FBI is investigating pay-to-play corruption during Clinton’s State Department tenure, through the mechanism of the Clinton Foundation — the family “charity” by means of which the Clintons have become fabulously wealthy by leveraging their “public service.” Thus far, Mrs. Clinton has been spared prosecution, but we have learned that the e-mails aspect of the investigation was unduly limited (no grand jury was used); and the legal theory on which FBI director James Comey declined to seek charges is highly debatable, even if it has been rubber-stamped by Attorney General Loretta Lynch.
The proximate cause driving the pardon question, however, is President-elect Donald Trump’s commitment that if victorious, he would appoint a special prosecutor to probe his rival’s “situation.”
This is one of what will no doubt be many things that Mr. Trump will find were easier to say in the heat of the moment (a contentious debate between the candidates) than to do in his new political reality. During the campaign, nothing damaged Clinton as badly as the specter of criminal jeopardy. But now Trump has been elected, and he has a governing agenda that will require cooperation from Capitol Hill. A prosecution of Clinton would provoke Democratic outrage, which means media outrage, which, in turn, means Republican panic.
Much of the outrage is ill-considered — although that doesn’t stop some smart people from expressing it. The objection is that the United States is not, for example, Turkey, where the Islamist despot persecutes his political opposition. But the comparison is apples and oranges. Clinton would not be under investigation for opposing Trump; the probe would be based on evidence of non-trivial law-breaking that has nothing to do with Trump. We know this because Clinton’s misconduct has already been the subject of ostensibly serious investigations by the incumbent administration’s law enforcers. If your position is that a politician may be investigated only if her own party is in power, then you are the one politicizing law enforcement — and creating an environment that breeds corruption.
