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?