Pardon Power: The Obamamometer’s Options

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends most of her time in India and other parts of Asia researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as writes occasional travel pieces for The National.

Since FBI Director James Comey’s bombshell announcement Friday that the bureau was reviewing new evidence regarding Hillary Clinton’s email tar baby, many questions have arisen– among the Naked Capitalism commentariat, as well as more widely– about the scope and details of the President’s pardoning powers. There are a few things to clear up right away, because I’ve seen a considerable amount of misinformation bandied about as to what the United States Constitution permits.  Readers  will please indulge me if in the interest of keeping this post short and sweet, I don’t debunk each and every wrong argument I’ve seen since Friday.  If I responded to all the crazypants stuff out there– tempting as that might be– I’d never get to my main points.

Article II, Section 2 of the United States Constitution says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

So allow me to summarize the salient points.

Absolute Power, Can Neither Be Reviewed nor Overturned As a Matter of Law

The President’s pardoning power is absolute.  Pardoning decisions are not subject to judicial review, nor can any individual pardon be overturned by an act of Congress. The pardoning power’s also unlimited as to offenses against the United States, so in theory, at least as a matter of law, a President could pardon someone for committing any offense against the United States ( I leave to one side the question of whether such an action would be politically possible).  A President could also, at least in theory, pardon him or herself– for anything except in cases of impeachment.

No Indictment Necessary

It’s not necessary for someone to be charged or convicted of a crime against of the United States for the President to pardon that person.  The most famous example of a President granting a pardon in a case where no indictment had been brought is President Gerald Ford’s September 1974 pardon of Richard Nixon shortly after he resigned the office of President.  Allow me to quote at length  from Proclamation 4311 Granting Pardon to Richard Nixon:

Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974.

Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment.

As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

NOW, THEREFORE, I, GERALD R. FORD, PRESIDENT OF THE UNITED STATES, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974….

What Can Congress Do?

Article, section 4, of the US Constitution grants Congress the power to impeach any federal officeholder:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Further, note that, Article I, Section 1, specifies:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.

A few considerations to note here, even though an extended discussion of impeachment  is beyond the scope of this post. First, impeachment is a political process, with the penalty (to reiterate from above) limited to “to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States.”  A party that has been convicted by the Senate in an impeachment proceeding “shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”

Second, although we’re all well aware of the history of impeachment proceedings and the presidency (e.g., involving Andrew Johnson, Richard Nixon, and Bill Clinton), Congress can actually pursue impeachment proceedings against all civil officers of the United States. And in fact, there’s a long common law tradition of such proceedings. I mention impeachment only in passing because such power lurks in the background, particularly in divided government situations– but I defer a more comprehensive discussion of impeachment issues in the current context until we know who has been elected President, and what the partisan composition of  each house of Congress will be.

What Will the Obamamometer Do?

Back to the pardoning question. So, now that I’ve outlined the constitutional authority for pardoning, the main issue I wish to address is: What Will the Obamamometer do?

On first glance, it’s obvious that a President who has been, at least to my mind, unduly concerned with his legacy, and who also fetishizes the concept of bipartisanship, would not want to touch the issue of pardoning Hillary Clinton with a barge pole.  I should also point out that the Obamamometer has been an unusually timid politician, and has often articulated soaring rhetoric that’s never backed by bold action. In other words, all hat, not cattle.

What the Obamamometer wil do, I believe, hinges on the outcome of the election.

If Hillary Clinton Wins

If Hillary wins next Tuesday, I believe the Obamamometer will not grant her a pardon, for the simple reason that she won’t ask for one.  To accept a pardon from Obama would be tantamount to an admission of guilt for her email practices, the Clinton Foundation’s activities, , influence peddling, and pay-to-play, among other issues .

Hillary Clinton as President can probably get away with foregoing a pardon, at least with respect to herself.  After all, does anyone seriously believe that she will nominate candidates for high-level Department of Justice positions that will vigorously pursue investigations into her and hear activities prior to becoming President? I don’t think so.

The more interesting question is whether she’ll be able to contain investigations that have already started and will no doubt draw in members of her inner circle.  I’m going to put these questions aside for the time being– I promise readers I will revisit them if they’re not moot, after the election.  But in the interests of keeping this post short, and confining its focus on the main question at hand– the Obamamometer’s options– I’m not going to delve further into these issues now.

If Donald Trump Wins

If Donald Trump wins, we’re in a completely different ballpark.

Trump promised in the second debate to appoint a special prosecutor to investigate Hillary Clinton’s (alleged) corruption (although I think the Wikileaks revelations should dispense with the need to put in an alleged, even in parenthesis).  I believe he will have to follow through on this pledge. His smart move would be to ask his Attorney General to appoint a  special prosecutor– nominally a Democrat– who has extensive experience investigating complex financial frauds, misuse of information, and influence peddling. And if Hillary Clinton also understands this to be Trump’s next move, this would leave her in the market for a pardon.

Now, there’s a lot of chatter out there that suggests the Clintons hate the Obamas and that  the Obamas hate the Clintons. I’ve also heard it said that they’re all great pals.

For the purposes of my argument, however, it really doesn’t matter one way or the other.  I think Hillary will ask for a pardon, and the Obamamometer will grant it.  It will be justified on the grounds that she’s suffered enough in losing the election, and that she’s been the subject of an unprecedented political vendetta.  The Democratic nomenklatura laid the groundwork for this point in the immediate aftermath of the second debate, where Trump was lambasted for calling for appointing a special prosecutor, if he were elected,  into Clinton’s activities. This pledge was taken as a beyond-the-pale statement of vindictiveness rather than as a logical follow-through to  investigations launched during the administration of a  President of the same party as the candidate, into serious allegations involving mishandling of classified information and other offences. And I might add, Comey’s late innings interjection should suggest that these investigations were neither comprehensively conducted, nor concluded.

Given that Trump’s next move is fairly obvious, I predict that the Obamamometer’s is too. Hillary will seek, and he will grant, a pardon, while promoting the line that she’s suffered enough in not getting her turn to be President, and that further, she’s exposed to extreme vindictiveness from Team R.  The unlikely outcome of a Trump victory will undoubtedly shake up the political, economic and cultural elite. It will trigger widespread concern that they might have to pay for their past sins. In order to forestall the possibility that punishment will indeed be meted out to fit crimes, wagons will be circled. The Obamamometer covets a reserved place at the top table, and to attain that, will have to deliver on a solution, and protect poor Hillary. Otherwise, no more summers on the Vineyard.

The more interesting question is how far the Obamamometer’s pardoning power will extend: will he provide get-out-of-jail free cards to Huma Abedin, John Podesta, Doug Brand, Cheryl Mills, any other Clinton minions, even the Big Dog himself? (I do of course realize Bill is probably untouchable). I don’t think so. Because although I have and will continue to criticize the Obamamometer for being politically timid– not to mention intellectually not all he’s been touted as being– I don’t think he’s personally corrupt in the narrow influence peddling sense. So let’s hope he takes the legacy stuff seriously enough to hold the line at a tightly-drawn pardon for Hillary only, in the unlikely event Trump wins next week.

As for the broader political issues– what Congress will do to address these issues– these will depend on the election results. Again, I defer further analysis until we see the election returns.


Print Friendly, PDF & Email


  1. altandmain

    The saddest part about this of all is that Clinton even needs a pardon while running for the POTUS.

    It is a sign of the complete moral degeneration of the Establishment. You can just tell that everything that Hilary Clinton has done is for her own naked power ambitions. She does not want to become president because she wants to accomplish something (the way that Sanders did). She wants it for power. You can just see it in her eyes when she runs. She has offered no vision beyond more of the same. I think that the reason why she needs to fall back on attacking Trump for being Trump and her gender is because she knows that she has nothing else to offer. She is more of the same old that has been screwing people over and she realizes that. Her pro-war, pro-Wall Street platform is at odds with her “Progressive” claims.

    As far as her dealings, it is symbolic of extent of the corruption and rot that extends throughout the Washington Establishment that Americans have rightfully become unhappy about. As others have noted, she will do literally anything for power. Even more sad is that she doesn’t want to acknowledge that she has done anything wrong. If the Democrats lose badly on election day, they will have nobody but themselves to blame for pushing a deeply unpopular and corrupt candidate that may very well need a Presidential Pardon. They sabotaged Sanders because a win with Sanders would mean they would not be able to continue business as usual

    As for Obama, he has been a disappointment this whole time. If he had been willing to take decisive action as president – what he said he would do in 2008, then he would have a far better legacy. He choose to continue the status quo and the corruption. That’s on him. I bet that it will hurt his legacy a great deal if he does pardon Clinton.

    1. scootie

      it is not that she wants power, it is that the presidency has already been sold, they have already collected the payment, and now they have to deliver. If she loses I think the Clinton speaking fees and foundation donations will evaporate….

    2. sgt_doom

      Great comments!

      Perhaps even more importantly, would be an investigation into those funds invested in Eaglevale Partners by Goldman Sachs and others, which supposedly was invested in a lost cause (Eaglevale Hellenic Opportunity), a fund invested in a bet on a quick Greek turnaround, which was later closed – – when it may very well have been a payoff to the Clintons from Wall Street (classic maneuver).

      From Eaglevale to the Clinton Foundation to points unknown???

  2. Foppe

    Ah, yes, that ultimate of get out of jail free cards.

    That said, if I were intent on destroying the Clintons (and the culture more generally, though for that reason no rational politician would touch this topic with a 10′ pole, for fear of giving the little people ideas), the way to go about it would be to hang all the dirty laundry out to dry regardless of whether this leads to any/all prosecutions, because of how this would lead to de facto ostracism. That would take Obama down a peg or two as well, and discourage future presidents from trying more of the same. (In fact, I’d favor doing this with anyone pardoned by someone with that power.)

    1. Jim Haygood

      Speaking of dirty laundry, the most articulate source is a guy named Steve Pieczenik. Wikipedia says that he is a former Deputy Assistant Secretary of State. Now he’s a critic making some astounding allegations. Pieczenik might be viewed as a Paul Craig Roberts analogue — a former insider who’s gone rogue.

      In any case, the material of interest was posted on YouTube in the past couple of days. Go to YouTube and search:

      steve pieczenik hillary clinton takeover
      steve pieczenik clinton pedophilia

      Whether this material is true or not (I suspect it’s partly true, but overstated), it is out there and it’s going to have an influence. It’s posted on Drudge Report now [“Gov’t Insiders Helping Assange”], which will expose it to millions of views.

      It’s pertinent to the calculations surrounding a pardon, since the FBI and NYPD are in a position to withhold details of the seized evidence for the few weeks remaining in 0bama’s term.

      Talk about “decision making under uncertainty”!

      1. JSM

        For an explicit threat to air some very dirty laundry, see/search

        BREAKING BOMBSHELL: NYPD Blows Whistle on New Hillary Emails.

        “What’s in the emails is staggering and as a father, it turned my stomach,” the NYPD Chief said. “There is not going to be any Houdini-like escape from what we found. We have copies of everything. We will ship them to Wikileaks or I will personally hold my own press conference if it comes to that.”

        Interestingly this site (True Pundit) was set up in 6/2016.

        1. Oregoncharles

          I hope that NYPD Chief is very, very careful. And well guarded. He’s playing in the big leagues now – assuming it’s real.

      2. divadab

        Thanks, Jim, for the insight into the oppo. You don;t really believe this Piezcenik character is legit, do you?

        1. Jim Haygood

          His claim to be funneling emails to Assange doesn’t ring true.

          More likely he’s jumping in front of a parade.

          But he’s probably correct in believing that Comey wouldn’t have acted without the NYPD finding something pretty nasty in Weiner’s laptop.

      3. redleg

        To put on my tinfoil helmet for a moment…
        How much would anyone want to wager that the Clinton cronies were selling the top secret docs to the Saudis and other high bidders foundation donors?
        If so, and Dear Leader’s favorite Huma was the project manager, those emails would be a cordite fire.

        [Removes foil helmet]

        1. Anon

          The idea that politicians with the access would be trading classified intel for cash or influence isn’t at all farfetched. Former military and civilian intelligence officials haven’t exactly been subtle about marketing their access to government secrets, and they’ve done well for themselves. In fact, I think that some retired politicians’ intel contacts are probably their most valuable asset to future big corporate clients.

      4. DarkMatters

        Skeptic level orange: Over the last 5 years or so, I’ve been heard various interviews that Pieczenik has given, and I’m undecided about his reliability. He typically makes sensational but mostly unverifiable claims. This current one about the internal coup that nobody can see is a good example. Not that what he says is necessarily wrong, but I’m looking for second-source verification. Just like that other tidbit: are the emails on Weiner’s laptop REALLY in a folder named Life Insurance? Inquiring minds want to know.

  3. Steve C

    Extraordinarily perceptive. Obama’s all about prestige and being held in high regard. Unusually for a politician, he seems indifferent to power and its uses. As you suggest, he also doesn’t care much about money. He wants recognition and to be part of in crowd. This is why he has treated the presidency as something to be rather than something to do and is so obsessed with image, not substance. Also, as you suggest, he’s indifferent to issues beyond his own self promotion. Therefore, he’s not a great intellect but he presents a fairly good facsimile of one.

    1. David Carl Grimes

      Obama doesn’t care much about the money? He wants to own part of a sports team. He wants to play golf in far-flung places where he has no choice but to fly by private jet. He’s going to live in Kalorama, a fancy part of DC, he wants to continue hobnobbing with the elite in the Vineyard. Yes, I’m sure he doesn’t care about money.

      1. Pavel

        Of course Obama doesn’t care about the money!

        That’s why he doesn’t mind spending $500,000 or so each way on an Air Force One holiday to Hawai’i … sometimes with separate flights for himself and Michele.

        Oh wait, that’s the TAXPAYER’s money… well he doesn’t care about that either.

        Thus were I the Grand Ruler of the Universe: all US presidents would be restricted to Washington DC and Camp David unless and until the federal budget is balanced.

        The calculation of Mr Obama’s holiday costs included $63,000 for his wife’s early flight out, and $16,800 to house Secret Service agents and Navy Seals in beach front accommodation for two weeks.
        There will be a further hotel bill estimated at $134,400 for 24 White House staff staying in the Moana Hotel at a rate of $400 a day.
        The estimate, by the Hawaii Reporter, also included $250,000 for local police overtime, $1 million for the president’s own round trip flight to Hawaii on Air Force One, and $10,000 for a local ambulance to accompany the presidential motorcade.
        Additional costs such as staff meals, renting cars for White House staff, and travel costs for Secret Service agents travelling ahead of the president were not included, meaning the bill will probably be even higher.
        The paper suggested the costs could have been kept down. It said the president could have stayed at a military base instead of the luxury 7,000 sq ft villa he has rented for $3,500 a day which has been dubbed the “Winter White House.” Mr Obama is paying the rental himself.

        Barack Obama’s Hawaii holiday ‘costs at least £1 million’

        Years ago in London I met some foreign investor types interested in a certain project. Their group was called “OPM” something. When asked, they said it stood for “Other People’s Money”. That’s what the DC (and other government) parasites just love to spend.

    2. oh

      Nah! Why would he care about money? He only cares about things that money can buy, such as a sports team, venture (or vulture) capital fund, expensive vacations, several homes in many prestigious locations, etc, etc. He’ll be well provided for by the financial, health insurance and pharmaceutical industry.

  4. Disturbed Voter

    Remembering the questionable pardons of Bill Clinton … new normal … have the D President pardon all D politicians when she is in office, and have the R President pardon all R politicians when he is in office. No pardon for the ordinary citizens however … gotta keep the prison industrial complex going.

    1. Pavel

      Yeah, it’s funny how when politicians do drugs (GWB, cocaine [allegedly]; Obama, cocaine & marijuana [admittedly]) it is described as “youthful experimentation” or the like, but when your average black kid in the ‘hood is busted it means 5 to 10 in the slammer — at $50,000 per year.

  5. Ulysses

    “The way to go about it would be to hang all the dirty laundry out to dry regardless of whether this leads to any/all prosecutions, because of how this would lead to de facto ostracism.”

    Interesting point. If HRC manages to lose the election, her hard-won status as an “insider” will begin to rapidly evaporate. She will (assuming the pardon) still have hundreds of millions to ease the pain, but very many of her “friends” will no longer have any reason to stand by her. This will not only reflect the self-interest of these “friends,” but also her long-known propensity to throw people, that she has used, under the bus at the drop of a hat.

    1. DarkMatters

      And the lid will be come off the pressure cooker. I suspect that there are many in government who feel bitterly toward Hillary but who are silent only because their careers might be at stake were she to win. I’m expecting a cacophony of whistleblowing if she loses.

  6. tinheart

    If there was any way to get a Constitution amendment started to revoke the president’s power to pardon, Obama pardoning Clinton could certainly get the ball rolling. The amendments would have a good chance of passing as long as an exception was carved out for the current president. (In the same fashion that the “limit to two terms” amendment came about.)

  7. steve

    One statement in this post that perhaps bears repeating:

    Article II, Section 2 of the United States Constitution says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment …”

    A state prosecutor’s power to investigate any number of related state crimes committed by the Clintons, e.g., fraudulent practices of the Clinton Foundation, would not be affected at all should she lose and be pardoned.

    And if she wins and there’s no pardon? Though it seems fairly clear that an actual indictment of a sitting president would be constitutionally questionable, the SCt ruled in one of Bubba’s civil cases in the 90s that the case could proceed and that the president could be forced to testify and participate as any other litigant.

    So whether elected or pardoned, there could still be a multitude of ongoing legal proceedings.

  8. cocomaan

    Great, succinct post, Jerri-Lynn. Keep this one in your back pocket, I have a feeling that it will come in handy later on. There’s lots of other possibilities:

    * Obama pardoning Huma, Mills, Podesta, whoever;
    * Huma, Mills, Podesta, whoever being pardoned by HRC;
    * Obama being pardoned by HRC;

    Some of these leaks could blow the lid off the civil service.

  9. voteforno6

    I’m not so sure that the establishment would roll over so meekly, should Clinton lose. She might very well seek a pardon eventually, but my guess is that they would first try to overturn the results in the Electoral College. It seems crazy, but I don’t think it’s possible to overstate just how desperate they would be. Considering how they reacted to just the threat of unapproved democracy, with the Sanders and Trump candidacies, just imagine what they would do if one of them was actually elected.

    1. oho

      “, but my guess is that they would first try to overturn the results in the Electoral College.”

      There would be an insurrecution and i’m not being hyperbolic. (even though semantically/legally, electors are either unbound or under the lightest of penalties if they don’t vote for the candidate they were elected for)

      And if you look at the map, if the poo even hits the fan, inner Beltway DC/Manhattan/SF would become the next 1871 Paris Commune. just in time logistics/all the food distribution sites are in the exurbs.

      Doubt that the NYPD has many Clinton supporters willing to die for the Establishment.

      of course, all of this are purely fictional conclusions drawn from obvious geography and reality.

    2. oh

      They’d refuse to accept the results of the elections (didn’t they criticize Trump when he said he didn’t want to say whether he would or not) and cry foul.

    3. Skip Intro

      Trump or a surrogate must now ask her to pledge to accept the results of the election!

      Then drop the mike.

  10. Jess

    “I don’t think he’s personally corrupt in the narrow influence peddling sense”

    You mean, “not yet”, right? I think we can all see the Obama Foundation coming.

  11. PlutoniumKun

    This is more of a question than anything else, but constitutionally speaking, does he have to specify what the pardon is for? Can the pardon extend to all and any wrongdoing that might be revealed through the emails? What if, say, Haiti sought an extradition warrant for the theft of its money? What if, say, one of her assistants is brought to trial, she is subpoenaed as a witness? There must be dozens of possible permutations.

    1. Oregoncharles

      “What if, say, Haiti sought an extradition warrant for the theft of its money?”

      Not an offense against the US, so not covered. Technically, she’d be extraditable. Does anyone think Haiti would have the nerve? Conceivably, IF Trump were President.

      Further thought, different topic: A pardon would not prevent a President Trump from naming a special prosecutor, allowing an investigation, and publishing the results.

    1. Jim Haygood

      Exactly what former La gov Edwin Edwards said [inverted for gender] … if they find her in bed with a live girl or a dead boy.

      See pieczenik’s second video at YouTube.

        1. aab

          I agree that AIPAC and the Israeli government has WAY too much influence over our government’s foreign policy, but “Zionist control,” really? What’s your understanding of how our work for the House of Saud fits in?

          1. Edward

            I think the Epstein scandal was an Israeli blackmail operation; important people like Bill Clinton are secretly videotaped having sex with enslaved minors. Its still not clear to me exactly how this would work. Wouldn’t releasing the tape implicate both Epstein and the politician? Anyway, ordinarily the American press would have a heart attack in their eagerness to cover this. Any one of these story elements would be a dream come true for them. Taken together, this story should have dominated the news for months and months. Instead, the scandal is suppressed. Why? I think the answer is that the Israelis have enough control over our press and government to bury the story.

            1. aab

              You’re taking several leaps in logic here. First of all, even IF Epstein was working for the Israeli government, that doesn’t translate to “Zionist control of our country.” That phrasing suggests that it is Israel calling the shots on everything, from the bank bail-outs to the ACA. There’s a difference between “illegal or inappropriate influence over key members of government” and “control of country.”

              And you do not at this time have evidence that Epstein was working for the Israelis or even that this was an organized pedophile ring intended to control government officials. Prince Andrew enjoyed raping children via the Lolita Express. He’s not that important. What he is is rich and repellent. People who enjoy transactional sex that maximizes the power differential in their favor are going to be attracted to sex with underage, trafficked people. In our current, deeply immoral, patriarchal capitalist system, the kinds of values, desires and personality traits that both lead to power and get reinforced by power correspond to some degree with taking pleasure in transactional, power-imbalanced sexual expression. So this could just be correlation, not causation. There are many wealthy, piggish men who enjoy raping children. A man with that predilection could climb to ever-increasing heights of wealth and status by creating opportunities for others to enjoy this. Then he owns them, thus facilitating his continued rise via ensnaring even more and higher status pedophiles. I’m pretty sure Alan Dershowitz didn’t need to be entrapped to support Israel; he just enjoys raping children, apparently.

              Is it POSSIBLE that Epstein did all this acting as Israeli agent? Sure. But we don’t have evidence of that now. Just because he’s Jewish doesn’t make him evil, or even just a Zionist. My Jewish husband is sitting ten feet away from me, and he’s a supporter of the BDS movement.

              (Also, let’s try to remember that Zionism is not the same as the current apartheid state in Israel, and did not have to lead to this nightmare.)

              1. Edward

                By “control” I mean able to suppress the press coverage and government investigation of this affair. I don’t think this is a run-of-the-mill pedophile scandal given the press silence.

                “Is it POSSIBLE that Epstein did all this acting as Israeli agent? Sure. But we don’t have evidence of that now.”

                From what I can see, the government is not going to properly investigate Epstein. This will be like the JFK assassination.

                “Zionism is not the same as the current apartheid state in Israel”

                The only Zionism that might be acceptable IMO is the non-state Zionism of Einstein, Chomsky, and some others. This Zionsim was always marginal.

        2. uncle tungsten

          I think Pieczenik is a mighty interesting revelation of the minds at work in State. I also think he is serious but I my believability is strained to the max. This is just a diabolical election campaign and I am loving it. I do tend to drink too much but jesus I laugh (weep) a lot.

          I am sure this circus will clatter on down the road for many months yet with tin whistles tooting and horns blowing and drums beating…. so much fun, so much at stake and one brilliant, eloquent and pleasant man with greying hair shaking his head on the sidelines.

          Regardless of his compromises how I wish for Bernie Sanders as President.

          1. Edward

            “Regardless of his compromises how I wish for Bernie Sanders as President.”

            It reminds me of Langston Hugh’s poem “A Dream Deferred” except in this case democracy is deferred.

  12. Michael K

    Sorry, I don’t buy the bit about Clinton accepting a pardon. Having served the House Judiciary Committee investigating Watergate, she is surely aware that when Gerald Ford pardoned Nixon, he relied on the Supreme Court case Burdick v. United States 236 U.S. 79 (1915) to justify his decision. Burdick held, among other things, that a pardon “carries an imputation of guilt, [its] acceptance a confession of it.” Ford believed that Nixon’s acceptance of his pardon was an open confession of his guilt, whatever Nixon may have said afterwards.

    Clinton would never admit guilt to anything she did not believe was a crime. She would never accept a pardon, let alone ask for one. It’s just not in her nature.

    1. Yves Smith

      I discussed this issue with Jerri-Lynn, that the the use of the term pardon in the popular lexicon was imprecise, and that Obama could grant her immunity from prosecution.

      1. Jerri-Lynn Scofield Post author

        But it would be a pardon, and would have to be done under the pardoning power– as Ford did w/ Nixon (see the last paragraph of proc 4313 as above), and would be called a pardon rather than styled in terms of immunity from prosecution (although that is in effect what it would be). It would likely be drawn to cover a specific time period. I did mention in my post that accepting the pardon would be seen as tantamount to admitting guilt and I appreciate Michael K’s citation to Burdick.

        Yet on the issue of whether or not she’ll accept a federal pardon, here I disagree w/ Michael K– I think if faced with a Trump presidency and the prospect of a special prosecutor, she’ll take a pardon. (Some people I spoke to suggest that she might plead out and take a deal– I’m not sure about this. In that case she’d have to admit guilt, whereas accepting a pardon would only be an implicit acceptance of guilt, that she’d then try and spin away. After all, the Obamamometer can’t rescind the pardon once it’s granted.)

        But note that this pardon only lets her off the hook w/ respect to federal offenses (which the email and national security issues undoubtedly are). The scope of the presidential pardon power is explicitly limited to offenses again the United States, w/ the exception of cases of impeachment.

        What I should have made clearer is that even with an Obamamometer pardon in hand, she’s exposed to potential legal liability for the full gamut of state-level offenses. To obtain her get out of jail free card for those offenses, she’d need to ask for a pardon at the state level (paging Governor Cuomo, et al).

        There will be plenty of opportunity to revisit these and other issues as these investigations continue.

        1. Adamski

          If Trump wins, I think either a pardon or Trump investigation means she will never get the presidency even after Trump. Which would make her suffer more? So I think she would accept the pardon.

            1. Jerri-Lynn Scofield Post author

              Now that would make for some serious fun! But I don’t think she can risk letting it get that far (unless she has something seriously compromising on the Trumpster, and if that were the case, surely she’d have released it by now, whether directly or through channels). She has much more leverage over Obama I think, in that a Hillary shitstorm tarnishes his legacy and would annoy party and donor elites.

        2. aab

          I know we’re supposed to pretend it’s not a factor, but she’s not going to live much longer. If he pardons only her, the rest of the criminal enterprise can still be pursued and exposed, right? Would pardoning Hillary help Bill and Chelsea protect the family’s known and attachable assets?

          I suppose it’s possible she’ll live long enough to see the inside of a jail cell if prosecuted, but come on — it’s really unlikely. Minor cases take years. Wouldn’t this case take at least five years? If she’s alive at that point, she’ll be extremely enfeebled, and probably not mentally competent. They’re going to actually send her to prison like that?

          I read your piece this morning pre-coffee, Jerri-Lynn, and maybe I misremembered. But if the only real question is what happens if Trump wins, isn’t the real issue protecting Bill, Chelsea, and the family assets? If that IS the more important goal, wouldn’t Obamamometer need to pardon Bill and Chelsea? Or can they just move somewhere without extradition and live off the many, many millions they’re sure to have washed and parked offshore?

          If the pardon won’t help her keep ALL the money, I don’t see why she should accept one that is limited to her own person. Without broad immunity for her underlings, she’ll still be trashed in the history books; even middle schoolers will be able to connect the dots from Nixon to Clinton. She really cares about the money. If you have any doubts about that, I submit the email exchange in which her campaign underlings had to work really, REALLY hard to get her to accept that Bill couldn’t take money for a bank speech two days after she launched her 2016 campaign.

          If this was my novel, and Hillary was a character I had created, I’d have her brazen it out. She may not be willing to accept that she’s going to be dead soon, but those around her must know. So when she throws one of her famous tantrums (now with added impulse disinhibition) because she cannot stand to admit mistakes of fact that do not even concern her own conduct, forget about acknowledging actual personal wrongdoing, I’d acquiesce, if I’m Mills, Podesta, etc. Why suffer through the effort necessary to get her to accept it, if it won’t spare them, won’t protect assets for Chelsea and her kids, and won’t materially effect her day-to-day life for her declining years. The worst thing she’ll deal with personally, if she doesn’t move beyond the reach of the law, is the occasional deposition and prep — which will be super-easy, won’t it? She’ll say “I can’t recall” every single time, and in the very near future, she’ll actually be telling the truth.

          1. Lambert Strether

            > I know we’re supposed to pretend it’s not a factor

            I hate that trope. This doesn’t apply to your comment, fortunately, but generally it’s a sign of bad faith. (Who is “we”? Who is imposing the “supposed to”? Etc. In general, the “brave truthteller” persona makes my back teeth itch. Put your case out there! Evidence! Reasoning!)

        3. apber

          Let’s suppose that Weiner’s “insurance file” contains evidence of pedophilia (or worse) implicating Hillary, and not just classified emails. After all the NYPD Chief said “as a father with children, it turned my stomach”. I cannot imagine Obama pardoning anyone connected to such activity, it would destroy whatever legacy he hopes to have.

          1. aab

            I think the “insurance file” label has been disproved.

            I’ve seen the chatter about pedophile codes in the emails. I considered it, since there is an obvious dynamic in some of the emails where they’re about to get into something really illegal, so they tell each other to get on the phone, the occasional actual reference to “code” that doesn’t seem sarcastic, and some very weird verbiage about food occasionally. With Weiner being investigated for sexting someone he knew was underage and Bill Clinton’s trips on Lolita Express solidly documented, and the uncomfortable connection between Hillary and the missionary who is either suspected of trafficking or proven to have trafficked children (there’s so much criminality being exposed, it’s hard to keep track of what’s alleged and what’s confirmed), thinking, “Say, maybe we have a high-level pedophilia ring in government, just like in Britain,” isn’t a stretch.

            Having said that, a couple of the emails being pushed are probably completely benign. If you read them by themselves, they read like people talking about food. I think there’s enough concrete evidence of appalling criminality, corruption and depravity that anybody aware of it is primed to see more, and there’s the tempting motivated reasoning that IF something like that was on the laptop, Obama would have to back away from her.

            If there really is a known pedophile code that uses food terms, I don’t want to know. It’s certainly possible that Hillary had more to do with Bill’s pedophilia than just turning a blind eye to it. But that’s bad enough on its own, isn’t it?

            And I know I’m being sloppy using the word “pedophilia.” From what I understand of Epstein’s set-up, these were young adolescent women, like 12-15. That’s not really pedophilia. But I don’t remember the correct term right now, and I don’t feel like looking it up. Frankly, I wouldn’t care if they were all 18. They would still be trafficked sex slaves, Bill Clinton still enjoyed himself there, and Hillary still figured, “My husband is raping and exploiting enslaved women. Should I finally cut him loose, report him, and lose my capacity to become a billionaire and/or the first female president of the United States?”

            The fact that that wasn’t enough to stop her and the entire ruling establishment from forcing her on us is a devastating indictment of them all. The fact that people clinging to the hope that “she raped children,” is the bridge too far for Obama is even more devastating in what it reveals about where we are as a nation. The latest Democratic ploy of claiming that “lawless conservative Trump-loving FBI agents are overthrowing the government” is so, so dangerous. Can Hillary really manage a police state in which the police (meaning both ALL law enforcement and the military) hate her? It’s like there’s a brush fire and they’ve all decided to toss on crumpled newspaper, logs and pine cones, and then collectively blow on it.

        4. Epistrophy

          The way that issues are developing, there could be criminal activity related to (1) obstruction of justice, (2) destruction of evidence, (3) racketeering (violation of RICO), (4) possible criminal prosecution due to a number of alleged deviant acts, (5) contempt of Congress and (6) who knows what other possible violations of state and federal laws including states secrets acts, possible espionage acts, possible treason, etc for her, possibly Bill and possibly Chelsea. Also these are spread across multiple legal jurisdictions. Even the Government of Haiti could come after them, amongst others.

          Can she be pardoned (given immunity) from all of these? Wouldn’t Obama be a fool to get involved in any of this? Wouldn’t he just step aside?

          In any case the Clinton Foundation, and the Clinton Fortune, is toast. Expect a lot of litigation from donors before this is over, of there are any assets after the IRS is finished.

  13. Pepe Aguglia

    Ironic (but typical) that Obama gave the Bush Administration a free pass on its criminality but the Rs are unwilling to reciprocate the courtesy

    1. Jim Haygood

      Just as Bush gave Clinton a free pass on pardons for cash, illegal foreign fund raising (which morphed into the Clinton Foundation, once they got the hang of it), etc

      The duopoly looks after each other. They want tactical victories, not the destruction of their essential other.

      1. oh

        I think you’re right about that. O already obliged by not pursuing any action against Bush and Cheney. It’s the R’s turn to return the favor.

        1. John k

          But trump is hardly a run of the mill rep… If he promised a spec pros, I expect him to deliver… They’ve each said some hurtful things…
          Fab that Fbi woke up…
          Delicious the sex bits are helping focus the electorate.

    2. DarkMatters

      I don’t think this is so much R’s vs. D’s as the cronies protecting each other from everyone else. Notice how the neocons and Republican leadership are either tiptoing around Trump or supporting Hillary outright. Bill and GHWB now seem to be the greatest of friends, likely to have started that relationship in Arkansas back in the Iran-Contra drug-running days. I think Obama’s main desire is to obtain membership in that group, if he doesn’t quite have it already, after he leaves office, and collect his own reward in the afterlife.

  14. Roger Smith

    Thanks for this Jerri-Lynn. This is a good read and something relevant one would not have found anywhere else.

    That fact that we even have to discuss a potential pardon of a current candidate is nauseating. Clinton’s campaign is historical alright…

    1. Pepe Aguglia

      That fact that we even have to discuss a potential pardon of a current candidate is nauseating

      Especially considering that the other candidate that campaigned for the nomination had no such legal baggage, polled better than Clinton in head-to-head matchups against Trump and other Repub candidates and very well might have won the nomination if certain key primaries had not been rigged in Clinton’s favor

      1. Roger Smith

        “No way man, the Republicans will eat him up! He went to Russia once!” — Democrats

        3 months later: “Trump is a man-bro Putin lover! They are electronic pen pals!” — Democrats

  15. Punxsutawney

    Yes it was a “Fools Errand” as the courtesy was never going to be reciprocated. And pardon Hillary, while Don Seigelman is sitting in the Fed pen. Enough proof for me that the Dems are as much without decency as the Republicans.

  16. Ranger Rick

    I was at lunch just the other day when someone brought up the hoary old analysis of the fall of Rome and remarked that the end times were marked by a desperate struggle to hold onto power in order to avoid being prosecuted.

    1. oho

      only national, public or private, institution with near sterling credibility is the rank-and-file military.

      Under the right conditions, Americans would definitely welcome a neo-Julius to clean house.

      Hopefully neo-Julius would follow Washington’s precedent and go home to enjoy retirement after his job was done.

        1. John k

          Sulla was pretty rough before retiring… Wouldn’t mind seeing the stables cleaned so thoroughly.
          Probably left because illness, died just a year later.

      1. uncle tungsten

        And precisely who will pardon the neo-julius? They tend to hang on with a death like grip to the helm. It is up to the people to clean hose and preferably through reform of the current process. Be careful what you ask for when invoking the white knight neo-julius as the USA military industrial complex is a vicious thug.

  17. Sluggeaux

    Analysis looks correct to me: Hill wins, no pardon; Hill loses, full pardon.

    However, I disagree about staff; they all get pardons, too. The only “legacy” issue for the Kenyan Socialist Prince/Peace Laureate/Hawaiian Golfer is the checks that will be cut by a grateful Dem nomenklatura. Undermining the rule of law is no big deal to him, but the potential for shocking revelations when the underlings start dropping thumb drives and finger-pointing to save their own skins is too risky to leave them dangling.

  18. Plenue

    “The President’s pardoning power is absolute. Pardoning decisions are not subject to judicial review, nor can any individual pardon be overturned by an act of Congress. The pardoning power’s also unlimited as to offenses against the United States, so in theory, at least as a matter of law, a President could pardon someone for committing any offense against the United States ( I leave to one side the question of whether such an action would be politically possible). A President could also, at least in theory, pardon him or herself– for anything except in cases of impeachment.”

    So much for that whole ‘Checks and Balances’ thing. We American’s really don’t want a President, we want an elected King, don’t we?

  19. optimader

    I suspect that not know half the sht HRC has been up to that is indictable, it would be a challenging legal exercise to frame to a pardon?

    1. LifelongLib

      Nixon’s pardon was for offenses he committed or may have committed, so presumably a Clinton pardon would have similar wording.

        1. LifelongLib

          The text of the pardon is at the top of the post. Pardon was limited to the time period of Nixon’s presidency but no specific charges were specified. In fact IIRC he had not yet been charged with anything (and never was).

  20. BondsOfSteel

    We don’t prosecute Colin Powel, Dick Cheney, and GWB for lying to congress and starting a war that cost us trillions and kills the most Americans since Vietnam… and HRC is prosecuted for using misusing email?!

    If I was Obama (or the DNC Chair, or Senate Minority leader), I’d pass the word to the Republicans that this would be seen as a political prosecution, and if they followed through with their threat to prosecute (or witch hunt) HRC, the next Republican to lose a presidential election would also be prosecuted. Maybe the speaker of the house too.

    They’re all guilty of something.

    1. aab

      You realize she could be prosecuted for violating the espionage act, right? There are people serving life in prison for mishandling classified documents. This isn’t about “misusing email,” and that’s BEFORE you address the massive corruption the server scheme was instituted to hide — which isn’t just “bad,” some of that was also plainly illegal. And then there’s war crimes.

      Yes, there’s a lot of corruption and lawlessness right now in our ruling class. But not every single elected official has broken serious laws like that. Bernie, for example, is apparently as clean as a whistle.

      1. DarkMatters

        I wonder whether her friendship with Henry Kissinger started with seeking advice about avoiding war crime prosecution.

        1. BondsOfSteel

          As a First Lady, Senator, and Secretary of State, what war crime would she have committed?

          I don’t see how you can accuse her (or Kissinger) without implicating her (their) boss(es). Obama a war criminal and not GWB (Powell?) Without that, you have no credibility.

          BTW, I’m not a fan or HRC… but I don’t understand why people hate her so much. Trump brags about the war crimes he’s planning.

      2. BondsOfSteel

        Yes… but no one has ever been convicted of the espionage act for doing their duties. Petraeus, who intentionally leaked classified info only got a misdemeanor, a fine and probation.

        This “massive corruption” that this server scheme hid is propaganda put forth by her enemies. There’s no proof. Plus, she doesn’t need some crazy conspiracy plot. She like the rest of the political system are up for sale… legally.

        BTW, it’s pretty clear that Trump is a tax cheat. There are lots of people in jail for that. I’m pretty sure you wouldn’t have to dig too far to find some law Paul Ryan broke.

        P.S. I like Sanders too… I was a local Sander’s delegate. But he’s still party of a political system that relies on money. He’s raised >$20 million over his career before he ran for Prez. They’re all guilty of something.

  21. none

    I heard “offenses against the United States” only means federal crimes, i.e. state law enforcement could still go after Presidentially pardoned people if they broke state laws.

    Suddenly I’ve been hearing that the seizure of Weiner’s laptop was done by the NYPD (I had thought it was the FBI before). So maybe the Clintons and Abedinijad can be prosecuted for some New York offenses. Unless Cuomo pardons them besides Obama. They might need the Arkansas governor pardoning them too, since that’s where the Clinton Foundation is. Collect ’em all…

    1. Jerri-Lynn Scofield Post author

      You’re correct: the President’s pardoning power only covers federal crimes. He can’t do bupkis about state offenses. I should have perhaps made this point clearer in my post (especially for the benefit of non-lawyers, who in reading that the power only applied to “offenses against the United States”– aka federal crimes– would not necessarily have immediately picked up on the point that prosecutors could still pursue state law violations).

      So thanks for your comment, which provides the chance for me to elaborate on this point.

  22. ChrisPacific

    The second to last paragraph in that Ford quote makes me want to puke. Holding the powerful accountable harms the country, and we shouldn’t do it. The more things change…

  23. Cry Shop

    Obama is probably looking for a pardon for himself too, if he isn’t going to give it to himself. He did send emails, classified emails, to Clinton insecure server from a non-government account of his own.

    If Clinton is elected, I expect Bill to get a blanket pardon, with the excuse to stop witch hunt (for his perversions of women/girls ala Epstien.

    1. NotTimothyGeithner

      Classified doesn’t apply to the President. Obama could go on the radio and read his daily briefing aloud every day if he wanted.

      1. none

        Obama could go on the radio and read his daily briefing aloud every day if he wanted.

        “Clinton determined to strike in U.S.”

    2. Jerri-Lynn Scofield Post author

      But even a blanket pardon for Bill– which I think extremely unlikely– would apply to federal offenses only. So no get out of jail free card for state crimes (unless he were also to receive pardons by the governors of the states in which those offenses occurred).

  24. different clue

    Obama’s main concern is getting the hundreds of millions of dollars he is expecting to get after leaving office in return for his many services to the OverClass while in office.

    Obama will pardon whomever his OverClass handlers tell him to pardon if he wants to see any of that money.

  25. Neil Pyper

    Thanks for this. It is good to get this sort of perspective presented in an intelligent way – even if I may not agree with everything you write!

  26. Jack

    I liked the article thanks. I had given some thought to this very issue already as a matter of fact. I just don’t agree with you, for the same reason you put forth; Obama’s concerns for his legacy. Surely he would realize that pardoning Clinton would be the act he is remembered for. One only has to look at Gerald Ford. He is mainly remembered as the President who pardoned Nixon. Yes, Obama has held office for 8 yeasr and was twice elected to it, but he really hasn’t done much. Saved us from the recession/financial implosion of 2008? Obamacare? This very site has exposed how mediocre his actions have been. Also, what about the TPP? I really doubt that Obama could get anything from the House if he pardoned Clinton. And he would have to act quickly after the election else to much dirty laundry would have been, making the pardon as viewed by the public even more despicable. I just don’t think he would do it. Also, I don’t think much of the deep state supports Clinton. Sure they have their coterie in various high offices, but the rank and file don’t think too much of her. There are some very serious reservations about her at all levels. Remember Bernstein’s discussion about this last summer? Pardoning Hillary is not at all in the same ball park as the pardon of Nixon was. Nixon was mainly guilty of obstruction of justice. Hillary Clinton? Possible influence pedaling, espionage, obstruction of justice, perjury, and who know what else. Bottom line, I just don’t think it is open and shut case that he would issue a pardon.

  27. sir flatulus

    A. I think we are getting our hopes up, only to have them dashed again. I think the fix is in 100% no matter who is the next white house occupant, and I think that will be Hillary rodham

    B. It is good to see there are so many people out there, like you commenters, who make interesting, insightful comments without resort to personal invective or vulgarity. Maybe there is hope

  28. Fred Rucker

    I have learned a lot from all of you. This page is read with alacrity and enthusiasm. I know I am not your equal and i have not blasted my bazoo with the emotionally fraught prose i have often read. As this Presidential campaign spins to a close, iam still quite amazed at the level of acidified vitriol toward Democrats and policy et al.
    Inferences i have read that purport to “perceive” the glint of “power” that Ms. Clinton has in her eyes is hyperbolic claptrap in my view as a 64 year old observer and student . The constant conspiracy drumbeat echoes thru the years past, when i became aware of the motives of those that , perhaps because of their own self regard for their opinions, or to demean the process in favor of some desperate right wing nonsense to obfuscate reasoning. Perplexed, i search for what is tangibly true. IF, you stalwart readers INSIST on the ascendancy of the Orange beast, you will get what you paid for, and the years of your apologies will fade as our nation becomes what your nascent libertarianism implies in the statemenst of comments and the acerbic views of some writers with an ideological axe to grind. The wheel is us, the peoiple you and others gleefully exhort and extort in the race to the really really SMART one. Wish i had the $$$ to have been withya in redneck Texas. I truly do desire to learn and understand.

  29. Dave

    Assume Clinton loses and Obama pardons Hillary along with the rest of her associates. I believe the pardon would be for offences up to that point and could not cover future violations of the law. May I suggest that given the pattern of lawlessness exhibited to this point by these people, opportunities for prosecution would likely occur again going forward.

Comments are closed.