The Practical Lawyer

December 26 - January 1, 2017

The presidential pardon power

By Ethan C. Nobles

One of the most controversial features of the recent presidential candidate was Donald Trump’s promise to appoint a special prosecutor to investigate and possibly charge Hillary Clinton with a handful of criminal offenses.

Clinton’s fans responded with outrage, claiming it is bad form for a presidential candidate to threaten jailing an opponent. A lot of Trump fans, on the other hand, enthusiastically and merrily yelled “lock her up!” at rallies and just about anywhere else they gathered.

At the time, the notion of Trump appointing a prosecutor with the goal of tossing Clinton in federal prison was considered quite remote. After all, the experts told us Clinton would clobber Trump, thus rendering that issue moot.

But, a funny thing happened on Nov. 6 – Trump won the presidency. Should he choose to do so, he could appoint a special prosecutor and have Clinton investigated. But, what if Barack Obama – during his last weeks as president – pardoned Clinton?

Such a move would likely infuriate a lot of Trump fans and delight the people who still support Clinton, but would it protect the former secretary of state from criminal charges? Probably.

The presidential pardon power is quite expansive, but it does have limits. In short, a president can pardon the acts that would lead to any federal crime whether charges have been filed or not.

Gerald Ford famously used that power to pardon Richard Nixon for any criminal behavior that came out of the whole Watergate mess. What people tend to forget about Nixon is that he spent a lot of time barely evading trouble. He stepped down as president before he could be impeached and Ford pardoned him before he could be charged with anything.

So, Obama could step in and pardon Clinton of any possible wrongdoing. One thing that should be mentioned here is that Republicans have spent a lot of time investigating Clinton and no charges against her have been filed yet. If Obama is convinced that charges won’t be filed, would he bother risking the political fallout of a pardon? We may have to wait and see.

Meanwhile, what limits are on a president’s pardon power? A president can’t undo an impeachment and only acts that violate federal law can be forgiven – a president can’t pardon away federal civil violations or defend someone who has allegedly broken state civil or criminal law.

In the case of Clinton, the allegations that she improperly handled, classified information appears to fall under federal law. Similarly, all accusations that she peddled influence and access as secretary of state involve potential violations of federal law.

Ethan C. Nobles is an attorney in Benton focusing on real estate, evictions, contracts, wills, trusts, incorporations, bankruptcy and other areas of law as the mood strikes. You can reach him at Ethan@NoblesLawFirm.com or visit him on the Internet at Nobles LawFirm.com.