Monday, November 14, 2016

McCarthy on a Clinton Pardon

At National Review, Andrew McCarthy heads up what strikes us as a second, more thoughtful wave of writing re a potential pardon of Hillary Clinton. It is lengthy, and wandering, and the primary substantive point seems to be Trump needs "to be ready with a plan." OK. Our previous thoughts on this topic can be found here. Another good effort can be found here.

McCarthy appears intrigued by the fact that White House press secretary has refused to "indicate" any "commitment" to pardon, or not pardon, Mrs. Clinton before leaving office - which strikes us as silly. Especially since McCarthy argues:
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. 
In sum, the situation is fluid and dynamic. Why should the President fog up the air further with any kind of "commitment" response to a world of potential hypothetical situations? On top of that McCarthy recognizes "the proximate cause driving the pardon question" is President-elect Trump’s claim that he would appoint a special prosecutor to dig into Clinton's “situation.” We all know candidates routinely make "promises" they do not keep, or intend to keep, or prioritize even when they intend to keep them. Was this really a major Trump campaign promise? Or nothing more than a kind of intuitive defensive mechanism given the personal nastiness of the campaign?

McCarthy correctly notes "a prosecution against a major party’s most recent presidential candidate [would] roil the nation and could complicate its governance." But much of the "Democratic outrage" at a Clinton prosecution would be "ill-considered."  She "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."

Nonetheless, there are "real-world circumstances" to consider. Trump will need to replace Justice Scalia, repeal Obamacare (a more serious, significant, bonafide, substantive, campaign promise), address a variety of reforms related to "debt, tax and regulatory reform," deal with Iran and "who knows what unforeseen crises."  Prosecution of Clinton "could derail the Trump train before it even pulls out of the station."

Then, McCarthy make the big play, through a series of observations:

- The president has himself to think about
- Clinton was a high-ranking member of his cabinet
- The administration was probably aware of her misconduct
- A public trial would constitute a major hit to his legacy as well
- Obama falsely denied knowledge of Clinton's private e-mail '
- He communicated with it at least 18 times
- This implicates him in her mishandling of classified information.

McCarthy argues Obama may "calculate" that a Clinton pardon "would burnish his legacy," but his "self-preservation" means "he will pardon her and "make the whole affair go away."

And the finale:
The new president should direct his attorney general to select a scrupulous, objective, non-partisan special prosecutor ... That special prosecutor and a team of FBI agents, operating outside the supervision of Trump’s political appointees at the Justice Department, should conduct a full and fair investigation ... Meanwhile, the Justice Department’s pardon office should begin preparing a full clemency petition ... Eventually, input from both Mrs. Clinton’s attorneys and the special prosecutor should be invited ... the special prosecutor should file an indictment if the facts are so damning that prosecution is warranted. But, before or after that is done, President Trump could issue a pardon if the equities weigh in favor of one, especially if the evidence appears to be ambiguous. Significantly, the special prosecutor and the attorney general could also end up announcing that the investigation is being closed without charges and with no need to address the question of a pardon ... Again, I don’t believe it will come to that. My sense is that President Obama will issue a pardon that covers not only Mrs. Clinton but any crimes committed by any person arising out of both the homebrew e-mail system and the Clinton Foundation — including any false statements and obstruction of the FBI’s investigations. That would make it case closed, sparing Obama embarrassment and Trump a political hot potato.. 
See full editorial here.

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