Donald Trump Should Pardon Hillary Clinton, Not Prosecute Her

Donald Trump Should Pardon Hillary Clinton, Not Prosecute Her

A pardon lets the accused avoid punishment, but sears her guilt into the public consciousness. After all, an innocent woman does not need to be pardoned.
Kyle Sammin
By

As they do every four years, the American people have rendered their verdict. Donald Trump will be the 45th president of the United States. Whether you regard his election as an endorsement of him and his policies or a rejection of Hillary Clinton and hers, the fact remains that he will occupy the White House for the next four years.

The fact also remains that his defeated opponent, Clinton, remains under a greater cloud of corruption and scandal than any previous presidential candidate. That, combined with the animus generated in the ugliest campaign in recent history, leaves the nation more divided than ever.

Investigations into Hillary, her foundation, and her cronies will continue, especially if Trump makes good on his promise during the campaign to appoint a special prosecutor to investigate Hillary. Instead of working to fashion a conservative agenda and come to terms with the rising populism that brought Trump to office, this would distract Republicans with the e-mails, the corrupt foundation, and every other Clinton scandal of the past few years.

They will, that is, unless President Trump instead issues an unconditional pardon to Clinton, and puts the issues to rest. For the good of the country, he should do just that.

Remember Watergate?

Clinton’s crimes, like those of any high-ranking political figure, are often compared to President Richard Nixon’s Watergate scandal. Watergate has become so embedded in our political discourse that the suffix “-gate” is now routinely attached to some noun as shorthand for an episode of political misconduct. Aficionados of past Clinton scandals know this well, and will recall Travelgate, Nannygate, and Troopergate, among others.

The Republican Party needs to figure out where its future lies. They will not do that be fixating on the Clintons.

We should also remember that Watergate completely consumed the nation’s attention and dominated the political conversation in Nixon’s abbreviated second term. Clinton is not president, of course, and will never be, but she still looms large in the national consciousness. Any hope that Congress might pass some meaningful laws will be lost if the conversation is dominated by hearings, depositions, and pontification about Clinton’s various crimes. The Republican Party needs to figure out where its future lies. They will not do that be fixating on the Clintons, who now belong to the past.

For those of us convinced of Clinton’s guilt, the whitewashing and covering-up by President Obama’s Justice Department have been nothing short of enraging. Nearly every Republican politician has uttered something along the lines of “if the person accused of these crimes were anyone but Hillary Clinton, she would have been convicted already.” They are correct, but would her prosecution by Trump’s Justice Department be any better for the nation? If anything, the perception of political persecution would make the charges against her, deserved or not, even more polarizing.

Some Republicans might see it as justice being served, but for many it will feel like reopening a wound for no reason but spite. Also, even if Clinton is charged, a conviction is far from guaranteed. We have seen federal prosecutors unable to prove their case in far easier circumstances. What are the odds that all 12 jurors in a Clinton trial would resist the temptation to let Hillary off the hook?

Only the Guilty Are Pardoned

Let us be clear: she’s going to get away with it. She will not be convicted and, despite the chants of many a Trump rally, no one will lock her up. That may be a miscarriage of justice, it may be a failure of the rule of law, but it is a political reality that is almost unavoidable.

That is not completely a bad thing. As much as conservatives rightfully recoil at Clinton corruption and leftist policies, the prospect of putting a presidential candidate and former secretary of state in an orange jumpsuit should appall people who want to avoid relegating the United States to the status of a tin-pot dictatorship. In this country, we remove our political enemies from office but, outside of a few truly unusual situations, we do not jail them.

President Gerald Ford knew this when he pardoned Nixon. In pardoning the disgraced former chief executive, Ford said that trying Nixon for his crimes would “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.”

Admittedly, Clinton has paid no such penalty and will not occupy that highest office, but the ruin of her and her husband’s reputations has already begun. Putting her in jail would serve little purpose, even if it were politically possible, and would cause years of anguish and division. What’s more, avoiding jail is not the same as avoiding guilt. No one recalls Nixon’s story and claims he was innocent of all the charges against him (or if they do, it is not because of the pardon). In fact, a pardon has the opposite effect: it lets the accused avoid punishment, but sears his guilt into the public consciousness. After all, an innocent man does not need to be pardoned.

That’s not just a measure of public opinion. As a matter of law, accepting a pardon means admitting guilt. In Burdick v. United States, the Supreme Court held that a pardon “carries an imputation of guilt; acceptance a confession of it.” If President Trump pardons Clinton and she accepts the pardon, she will be also admitting that she is guilty of at least one federal crime.

Ford paid a price for pardoning Nixon when he narrowly lost the 1976 election. For Trump, the situation is different. In pardoning a political enemy rather than an ally, he could project an image of moderation, conciliation, and far-sighted bipartisanship, all things he lacked during the campaign.

A Pardon Would Not Vindicate Her

For Hillary, on the other hand, a pardon is no vindication. History will show even more clearly that the mark of scandal can never be cleansed from her escutcheon. Her unfavorable rating, already high for a major party’s presidential candidate, will not fall with the remove of years. The chances of getting a Democratic Congress in 2018, not to mention the election of a Democrat to the presidency in 2020, will not be increased by their association with a pardoned felon.

Republicans will be able to turn the page on the past Clinton scandals and concentrate on developing an agenda, either with Trump or without him. The Clintons, and Democrats generally, are at their best when talking about scandals and personalities. Just look at the ads Hillary’s campaign ran in the last few weeks before the election: the focus was on Trump, his scandals, his bizarre statements, and his character generally. It was almost enough to get her elected, despite her own deep flaws as a candidate.

So let’s turn the tables on them, and talk about issues again. Freed from responsibility for investigating years-old shenanigans, Republicans can focus instead on Obamacare’s death spiral, the growing federal deficit, the crushing weight of taxation, constricting regulation, the assault on civil liberties, and every other bad idea in the Democratic platform. They can focus on where the party is going, not where it’s been.

A pardon will not erase the Clintons’ corruption, but with the decks cleared, Trump and conservatives could possibly forge a positive, forward-looking challenge to the stale ideas of the Left. As good as a pardon would be for Clinton’s hopes of staying out of prison, it would be better for her erstwhile political opponents and better still for the average American. President Trump should do the right thing, as President Ford did, and help put our long national nightmare behind us.

Kyle Sammin is a lawyer and writer from Pennsylvania. Read some of his other writing at kylesammin.com, or follow him on Twitter @KyleSammin.

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