Donald Trump’s campaign call to prosecute and imprison Hillary Clinton confronts real-world limits that could, in theory, culminate in a pre-emptive presidential pardon like the one granted to former President Richard Nixon more than 40 years ago.
Cheers of “lock her up” became a signature feature of Trump’s rallies, but any future prosecutorial decision will be filtered through a system designed for political independence. The potential melodrama, moreover, could conceivably be stopped in President Barack Obama’s final days.
“There are many examples in history of pre-conviction pardons, though none as open-ended as Nixon’s,” Margaret Love, who formerly served as the Justice Department’s chief pardon attorney, said in an email interview Wednesday.
In 2001, for instance, then-President Bill Clinton extended clemency to former CIA Director John Deutch for a misdemeanor charge of mishandling classified information. The charge had not yet been filed at the time Clinton acted.
Since taking office, Obama has commuted hundreds of sentences, many of them dealing with crack cocaine offenses, and pardoned 70 individuals.
“The Constitution says the president can pardon ‘offenses’ against the U.S., not ‘convictions,’” attorney Samuel T. Morison, a pardon specialist, said in an email interview Wednesday. “The only constraint is that he can’t pardon someone in advance of committing the offense.”
Trump himself has kept in play the idea of prosecuting Hillary Clinton over her alleged mishandling of State Department emails and perhaps other, unspecified, offenses.
“If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation,” Trump told Clinton at the second presidential debate last month. “Because there has never been so many lies, so much deception. There has never been anything like it.”
Trump further foreshadowed a foregone judicial conclusion, informing Clinton “you’d be in jail” if he were to become president.
If Trump pursues an unprecedented prosecution of his former presidential opponent, he would start through the nomination and Senate confirmation of an attorney general. Some Senate Judiciary Committee members would inevitably press the nominee about his intentions.
“The problem they have here is the FBI has twice now said there is no evidence of a crime,” said Katy Harriger, a professor of politics and international affairs at Wake Forest University. “The Republicans that want to govern are going to be saying, ‘Why (investigate)?’”
Although the Justice Department has a Public Integrity Section that specializes in politicians, a Clinton case would, as Trump suggested, all but require someone from outside.
Technically, they would not be called a “special prosecutor” or even “independent counsel,” the terms familiar to many from the investigation and impeachment of Clinton’s husband in the late 1990s.
Under a 1978 law, the attorney general could ask a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to appoint an individual who was named a “special prosecutor” until 1983 and an “independent counsel” after.
Congress let this law expire in 1999.
Instead, using regulatory authority, the attorney general can, on his or her own, appoint a “special counsel” who is relatively less independent. In 1999, for instance, former Missouri Republican Sen. John Danforth was appointed a special counsel to probe the deaths at the Branch Davidian compound in Waco, Texas. In 2003, James Comey, who is now the FBI director but then held a different Justice Department post, appointed a special counsel to investigate the leak of a CIA officer’s identity.
The regulations permit the attorney general to fire the special counsel for “misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause.”
In theory, any case could be short-circuited by a presidential pardon granted before Trump takes office on Jan. 20. The precedent was set in September 1974, when President Gerald Ford extended a pardon to Nixon, his former boss, who stepped down rather than face impeachment and possible criminal charges.
“The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States,” Ford said in the pardon proclamation.
He added that the “full, free and absolute pardon” covered all offenses that Nixon “has committed or may have committed or taken part in” during his presidency.
While Ford paid a political price for his unpopular action, which contributed to his loss in 1976 to Democratic candidate Jimmy Carter, the lame-duck Obama has less to lose, except, perhaps, to his reputation.