Executive decisions.

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Why Obama Should Pardon Hillary Clinton

Paula Dwyer writes editorials on economics, finance and politics for Bloomberg View. She was London bureau chief for Businessweek and Washington economics editor for the New York Times, and is a co-author of “Take on the Street: How to Fight for Your Financial Future.”
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You may recall this exchange in the Oct. 9 presidential debate, when Hillary Clinton said, “It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in our country.” To which Trump replied, “Because you’d be in jail.”

It wasn't clear then if candidate Trump was just grandstanding. Nor is it clear now if President-elect Trump will do what he also pledged then: "If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception."

In an interview with the Wall Street Journal after he was elected, Trump didn't list prosecuting Clinton among his priorities. Still, half the country now worries, and the other half hopes, that Trump will make good on his threat. More likely, he'll contract the job out to House Republicans salivating over the prospect of televised hearings, starting with Clinton raising her right hand, then taking the Fifth over and over again.

So should President Barack Obama pardon her, preempting the GOP's plans for four years of show trials?

Rudolph Giuliani, mentioned as a possible attorney general, has already warned Obama off a pardon, while revealing to Fox News his firm belief that Obama and Clinton "have completely corrupted the Justice Department and the State Department" and predicting her inevitable indictment.

To assess the wisdom, legality and politics of a pardon, this is where to begin: The incoming administration already has its mind made up that she committed crimes and should be prosecuted. Given that, Obama shouldn't hesitate to pardon her -- even if she says she doesn't want him to.

Without it, Republicans will reopen the 35,000 e-mails turned over to the State Department. Thanks to WikiLeaks, they will rummage through thousands of e-mails to and from her campaign chairman, John Podesta. They will resume the search for the 33,000 e-mails that she said were personal and had deleted. They will second-guess FBI Director James Comey's decision that even if she had been "extremely careless" with her private server, she never intended to commit crimes.

They will also subpoena years of Clinton Foundation documents in search of pay-to-play favors and conflicts of interest during her tenure at the State Department. And they won't hesitate to draw in Bill Clinton and top aides Huma Abedin and Jake Sullivan, or place in legal jeopardy many other longtime associates.

Why would Republicans pursue Clinton, even though she is unlikely to run for office ever again? The simple answer is that "lock her up" energized Trump's campaign and propelled many House members' re-elections.

The question, then, isn't whether Obama should pardon her, but whether he will. His lawyers will look at past presidential pardons for guidance and ask: Would he be tarnishing his legacy if he takes action?

Bill Clinton certainly tarnished his own when, on his last day as president in January 2001, he pardoned fugitive financier Marc Rich, skirting the Justice Department's usual procedures to do so. Rich's ex-wife had recently made a handsome donation to Clinton's library.

The case of Hillary Clinton is entirely different. She has been investigated almost continuously for four years. But in addition to being twice absolved by the FBI, she hasn't been accused of any specific crime, let alone indicted, tried or convicted.

To those Republicans who would say a pardon proves they were right all along, Obama can cite Gerald Ford's 1974 pardon of Richard Nixon. Though Ford's action probably cost him the election of 1976, he acted to bring the country together after two years of the Watergate scandal, congressional hearings, impeachment proceedings, a Supreme Court decision and finally Nixon's resignation.

Obama's lawyers will also look to other last-minute pardons, including President George H. W. Bush's Christmas Day 1992 exoneration of former Defense Secretary Caspar Weinberger and five others. They had been involved in the 1987 Iran-contra arms-for-hostages scandal in the Ronald Reagan administration.

Bush issued the pardons after letting the legal system run its course for six years: An independent prosecutor, Lawrence Walsh, had obtained one conviction and three guilty pleas. Two other cases were about to go to trial. In his anger, Walsh revealed that President Bush was a subject of his probe, based on notes Bush had taken as Reagan's vice president, inviting accusations of a cover-up.

President George W. Bush avoided similar allegations in his 2007 commutation of the 30-month prison sentence of Lewis Libby, an aide to Vice President Dick Cheney. Libby had been convicted of lying and obstructing justice in the investigation into who leaked the name of Valerie Plame, a Central Intelligence Agency operative, to a columnist. Bush waited four years for the case to go through the federal courts before acting.

Obama doesn't have the luxury of waiting, as his predecessors did. The only way to head off a Republican vendetta against someone to whom we owe "a major debt of gratitude for her service to the country" -- as Trump said in his post-election address -- is with a pardon. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Paula Dwyer at pdwyer11@bloomberg.net

To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net