Will Justice Be Served?

With the election of Donald Trump, many of us (count me in!) are hoping that the Clintons will at last be held to account for their criminality. One thing stands in the way: the power of the President to grant pardons.

“But wait,” I hear you saying, “can President Obama pardon the Clintons in advance for crimes they haven’t even been charged with yet?”

Yes, unfortunately, he can. In 1866, in Ex Parte Garland, the Supreme Court had this to say (my emphasis):

The Constitution provides that the President “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”

The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

Will Mr. Obama pardon the Clintons? We should not be surprised if he does. What, after all, does he have to lose? Yes, there would be terrible wrath on the part of millions of Americans who value the rule of law. But that was never an obstacle to this President, even while he still had to seek re-election.. Why should it restrain him now?

Related content from Sphere

23 Comments

  1. I don’t think he can pardon himself, so he might want to be on Trump’s good side, and perhaps even be perceived as helping Trump. I guess it depends on how bulletproof he thinks he is.

    Posted November 9, 2016 at 1:14 pm | Permalink
  2. JK says

    heh heh heh

    http://www.nytimes.com/2016/11/09/business/media/media-trump-clinton.html

    Posted November 9, 2016 at 1:21 pm | Permalink
  3. “What, after all, does he have to lose?”

    Well, for one thing, he could lose whatever morsel of positive legacy might remain after his long-suffering victims have stripped him of virtually all respect normally accorded a former President.

    Posted November 9, 2016 at 1:24 pm | Permalink
  4. JK says

    Oh and Malcolm?

    Reckon you can find out One-Eyed’s bank routing information?

    I’m feeling magnanimous, I’d like to buy him a bottle of

    http://rebelyellbourbon.com/

    Posted November 9, 2016 at 1:29 pm | Permalink
  5. JK says

    http://observer.com/2016/11/what-the-hell-just-happened-a-look-back-at-the-2016-election-cycle/

    Posted November 9, 2016 at 1:59 pm | Permalink
  6. Malcolm says

    JK,

    I think Peter no longer drinks ardent spirits. He might appreciate hemlock, though.

    (I’m kidding, of course. Peter has a blithe and insouciant nature, and I can’t imagine him actually being despondent over such a trifle as the fate of our civilization.)

    Posted November 9, 2016 at 2:13 pm | Permalink
  7. Malcolm says

    Henry,

    Well, for one thing, he could lose whatever morsel of positive legacy might remain…

    For his opponents, he has no positive legacy. For his supporters, a pardon of the Clintons would only burnish it.

    Posted November 9, 2016 at 2:13 pm | Permalink
  8. Rick says

    Read that again. I believe it applies to only the male of the species.

    Posted November 9, 2016 at 2:24 pm | Permalink
  9. Malcolm says

    Nice angle, Rick. But back then, you see, we didn’t fuss around with ghastly “he or she” constructions in written English. It was well understood by all, in those days, that “‘man’ embraces woman”.

    Posted November 9, 2016 at 2:28 pm | Permalink
  10. Rick says

    A man can dream, can’t he?

    What about the impeach thingy. Can that be finagled?

    Posted November 9, 2016 at 2:38 pm | Permalink
  11. JK says

    http://observer.com/2016/11/a-roadmap-national-security-under-president-donald-trump/

    Posted November 9, 2016 at 4:17 pm | Permalink
  12. Troy says

    I am a firm believer in the rule of law. Hillary Clinton represented the antithesis of the rule of law. I would love nothing more than to see her in prison. At least ordered to make a court appearance in front of a judge pursuant to a lawful order from a summons.

    Having said that, I think a pardon by Barack wouldn’t be such a bad thing. First, I think there is no doubt that he has the constitutional authority to do so. So that isn’t an issue for me. As for Obama’s legacy, I don’t think a Clinton pardon is going to do much to tarnish his legacy. I am quite certain that history will conclude that Obama was one off the most incompetent, feckless, mendacious presidents ever. Third, it would take the issue out of Trump’s hands. There is nothing he could legally do about it. So this nation would not have to endure the comedy/drama of watching the Trump administration expend a great deal of financial and political capital to put her behind bars (of which there is no doubt she belongs). That would leave Trump with the time and energy to solving the very real problems this nation has if it is not already to late.

    I feel a lot like at the end of The Return of the King after Sam and Frodo have finally dispatched the One Ring. All this time and effort was to that end. And that end, defeating Clinton, has been very cathartic.

    Posted November 9, 2016 at 7:30 pm | Permalink
  13. Malcolm,

    “… blithe and insouciant nature” doesn’t begin to describe adequately the OEM. I still recall how Troy once described him much more accurately, before you deleted his comment.

    I’ll not repeat what Troy said, but I will say that he does not refrain from trash-talking his friend when he is confident that he has the upper hand, but does not have the balls to admit he is a total twat whenever that turns out to be the case, which is often.

    He is like the playground bully who runs home to his mommy when he loses his advantage.

    Posted November 9, 2016 at 8:09 pm | Permalink
  14. Asher says

    Wait a second, let’s say Trump names me and names my neighbor and issues an order declaring that if the first named person kills the second named person there will be no prosecution. Are you saying that scenario would be covered by that ruling?

    What am I missing? Also, “well, no one would ever do that” is not a legitimate response.

    Posted November 10, 2016 at 9:00 am | Permalink
  15. Malcolm says

    Asher,

    Yes, I believe that would be within his Constitutional power.

    As Justice Field wrote in the Court’s opinion in 1866:

    The power thus conferred is unlimited, with the exception stated.

    The exception, as written in the Constitution, is “cases of impeachment”.

    Posted November 10, 2016 at 2:19 pm | Permalink
  16. Malcolm says

    Henry,

    What I meant was that Peter really doesn’t care about politics much at all; it’s more of a sport to him, as he believes (naively, in my view), that things are just great and bound to get better, and that his own life will be affected little or not at all by the decline and decay of the West.

    He may be right about that last part: as Adam Smith said, “there’s a lot of ruin in a nation.” The crepuscular era of a great civilization can be pleasant enough for those with the resources to enjoy it. It depends on how sharply the decline accelerates.

    Posted November 10, 2016 at 2:31 pm | Permalink
  17. Malcolm says

    Troy,

    You make good points. But I want justice. I’m sure I am not alone.

    As Oliver Wendell Holmes once said: “The law must keep its promises.”

    Posted November 10, 2016 at 2:38 pm | Permalink
  18. Malcolm,

    I must defer to your personal judgment of the OEM’s nature since I am only familiar with his online persona. But I still think your many years of friendship have clouded your ability to see things as they are.

    I consider myself a pretty good judge of character even if just based on reading between the lines. The OEM’s voluminous foaming-at-the-mouth tirades do not persuade me that he is merely funning with you (and the rest of us here by his frequent sneers about your “amen chorus”). I sense a viciousness in his tone that goes beyond mere sport. If he was so comfortable with his own status and prospects for the future he wouldn’t waste so much time simply needling you. He would be spending more time playing golf or whatever his favorite leisure activity is, not composing endless rants.

    Posted November 10, 2016 at 3:38 pm | Permalink
  19. Asher says

    Malcolm,

    Did the Supreme Court not consider such a scenario? If not, this demonstrates the impending corruption of that institution as far back as 150 years ago. What sort of idiots wouldn’t consider such a possibility when issuing such wording on a ruling?

    I guess the answer is that they just assumed people would be acting in good faith. Still, I can’t see why even moderately intelligent people wouldn’t be able to foresee a politics based on bad faith.

    Posted November 10, 2016 at 10:32 pm | Permalink
  20. Asher says

    Apparantly, Guiliani made the claim that such a scenario would not happen but he did not offer any supporting argument. Basically, he simply claimed people would come up with a reason as to why “unlimited” doesn’t really apply to future crimes. Fine, but that just indicates case law is broken.

    Posted November 10, 2016 at 11:57 pm | Permalink
  21. Malcolm says

    Asher,

    I can’t see why even moderately intelligent people wouldn’t be able to foresee a politics based on bad faith.

    Well, the Framers were at least moderately intelligent.

    Perhaps if asked they might have said that if we got to the point where such a person were actually the President of the United States, pardoning people for murder would be the least of our problems.

    Posted November 11, 2016 at 12:31 am | Permalink
  22. Malcolm says

    From Federalist 74:

    Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

    Posted November 11, 2016 at 12:34 am | Permalink
  23. Asher says

    Malcolm,

    I object to the very term “framers” I contend that the Constitution is a descriptive, not proscriptive, document. “Documenters”, maybe? Any serious constitution is about “who we are” not about “who w should be”

    Either way, I was talking about the SC justicesm who voted for the ruling containing the word “unlimited”, not about the framers. What a bunch of morons

    Posted November 11, 2016 at 1:01 am | Permalink