Richard Nixon, Caspar Weinberger, and Hillary Clinton
by Mary W Maxwell, LLB
The president has said he may use his pardon power to give Hillary Clinton freedom from punishment for her crimes. Is that legal? I am a strict constitutionalist (Scalia had nuttin’ on me). I say he is free to do it.
Article II, Section. 2 of the Constitution states:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; And he shall have Power to Grant Reprieves and Pardons for Offences against the United States…”
So there we see that he can only give pardons for federal crimes. I believe money-laundering is only a federal crime. But some of the other charges that could be brought against Mrs Clinton may be state crimes and Obama’s pardon will have no effect on that.
What about the idea of giving the pardon BEFORE any charges are brought? The final draft of the parchment neither allowed nor forbade that, but let’s look at James Madison’s notes. He wrote down — in “real time” — everything that any of the 55 delegates said.
In regard to the above wording of the Constitution, we find:
“Monday Augst. 27th. 1787. In Convention Art X. sect. 2. being resumed [Note: Art “X” later changed to Article II]
Mr. L. Martin moved to insert the words “after conviction” after the words “reprieves and pardons”
Mr. Wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen. — Mr L. Martin withdrew his motion.”
So that’s that. There are no constitutional restrictions.
How about Precedent?
Precedent? Yes, there is at least one case where someone was let off the hook before there was even a hook. Namely, when Gerald Ford took over as president in 1973, following the resignation of Richard Nixon, he granted Nixon a sort of omnibus pardon.
I recall my father informing me of the news on the day it was announced. Dad seemed to believe without hesitation the reason given by the new president for pardoning Nixon. (Ahem, that was in the days before we knew that the new prexy was up to his neck in child trafficking).
The reason given — following impeachment talk, and all the protests about Watergate and the Vietnam War – was to let the nation heal.
Hillariously that is the same reason mentioned as to Obama’s motives: to let the nation heal.
The wording of Ford’s pardon of Nixon was: ““for all offenses against the United States which he has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”
Better Sack Your Legal Adviser, Mr Obama
This is not a good move. You wonder if the man has lost all common sense. To forgive Hillary certainly implies that there is something to forgive! I’ll bet some Democrats who voted for Hillary will now peg her as a criminal. They will not be pleased that the White House is playing cozy. (I mean, even among Democrats there are some constitutionalists and some people who do not believe in coddling a criminal, for Pete’s sake.)
The matter also raises a flashback to Prexy GWH Bush. A short time before his departure from office (i.e., before Bill Clinton was inaugurated in January 1993), Bush pardoned Caspar “Cap” Weinberger, who had been Secretary of Defense.
Cap had been charged with perjury and obstruction of justice (my two personal faves) but had not yet been tried. Even that pardon was a bad thing to do legally – though it was not illegal. Citizens, having heard that Weinberger was indicted, would want to see the case brought to fruition.
I think it is more than a good guess that the purpose of the pardon was to prevent a trial in which all sorts of things about Iran Contra might have come out. Those things, by the way, have never come out. And they are said to be huge.
In regard to Hillary, too, all of us would now be free to ask “What might have come out at her trial?”
There is an article on Lawfareblog.com entitled “For the Sake of the Nation, Obama Should Pardon Clinton.” It is dated yesterday, November 12. I wonder if its authors, two Brookings Institution people, are the ones who told Obama it was a good idea to pardon Mrs Clinton?
If so they used pretty screwy logic. They note:
“The trouble is that Trump has made repeatedly clear, that he has no intention of letting facts, or evidence, or standards of proof or predication — not to mention traditional law enforcement independence — get in his way. During the campaign, Trump made clear repeatedly that he regarded her as guilty of crimes.
“The charge was a central theme of his campaign, in which he frequently presided over large crowds chanting ‘lock her up’ and, in some extreme cases, ‘execute her.’ Trump insisted that the FBI investigation which cleared (though criticized) her was corrupt and rigged. And he has promised to appoint a special prosecutor to investigate Clinton.”
In my opinion, a crowd yelling “Execute her” is not saying “We want Trump as president, not Hillary.” They are much angrier than that. Wouldn’t one want to know what they re so angry about?
The Electoral College
Also, this new move is a bit odd given that the Electoral College has not yet elected Donald Trump. That cannot happen until the Electors meet, in their respective states, on December 19.
What if they were to elect Hillary? There is a petition signed by 3 million people at Change.org asking Electors to “cheat” and cast their December 19 ballots for Clinton. Imagine that she gets elected. And there has been talk of a president pardoning her for crimes in order to “heal the nation”? My goodness.
Let me add that I use the word “cheated” there as a quote of what is being said. I do not think the electors would be cheating. It is their duty to vote for the best candidate. Yes, the Founding Fathers intended that they use their brains.
In some of the 50 states Electors are required to vote according to the results of the November 8 public polling. If they used their conscience instead and were punished, I think they would win their case in court on the basis of their state’s rule being unconstitutional.
Finally, since I said I was a strict constitutionalist, I now say that I want all 538 electors to use their conscience. This could mean that neither Trump nor Clinton attains 270 votes! Thus the House of Representatives would resolve the matter on January 6.
They would do so by state, each state having one vote. Vote for whom? They could choose freely among the three persons who received the top number of votes. Could that include, say, Meryl Streep? Yes, any US-born person age 35 and up is eligible.
And once the 50 representatives start voting they are not allowed to go home until it’s done.
And if “Meryl Streep” gets elected and offers Trump a pardon (for any sins he may have committed) I trust he will say “No thank you, that is not what the Framers of the Constitution wanted. I will trust the law to acquit me of any crimes for which I am falsely accused.”
— Mary W Maxwell is a proud Seppo as well as a proud Aussie.