On Friday, just days before the election, reports are emerging that the FBI has re-opened the Hillary Clinton email investigation. “The FBI has learned of the existence of emails that appear to be pertinent to the investigation,” a letter from FBI Director James Comey reads. And while Comey didn’t indicate how long the investigation could take, it’s pretty safe to bet investigators won’t come to any kind of decision before November 8th. It may even take months for the FBI to wrap up round two of this. So what happens if Clinton is elected, takes office, and then finds her self under indictment? It might not be likely, but it is worth exploring the legal possibilities.
It is Friday, January 20, 2017 and Hillary Clinton has just been sworn in as the 45th President of the United States after narrowly defeating Donald Trump in November. Republicans managed to hold both the House of Representatives and the Senate. A few weeks after winning the election, however, the Department of Justice handed down a multi-count indictment against Clinton over her handling of classified information and her involvement in an alleged pay for play scandal with the Clinton Foundation during her time as Secretary of State. It is a scenario that several of our commentators, and twitter followers have asked us to analyze.
As I am sure you can imagine, such a situation would cause a political firestorm of epic proportions. But before dismissing this scenario as some sort of wild fantasy, be reminded that we are talking about the Clintons who are no strangers to bizarre scandals (bringing nearly all of them upon themselves). In fact, a delayed announcement would be similar to what happened with David Petraeus in 2012 when DOJ sat on announcing that investigation until three days after the election.
Now, back to January 20, 2017. Could a future President Hillary Clinton pardon herself?
The short answer is she could certainly try, and may very well get away with it. What’s more, there is likely little Congress could do about it — even with a Republican controlled House of Representatives and Senate. Here is why.
The president’s pardon power comes from Article II, Section 2 of the United States Constitution that provides, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Based on the language of Article II, Section 2, the only limits placed on the power are that pardons may only be issued for federal offenses (not civil or state crimes), and a pardon cannot override the Congress’ impeachment power. Presidents have used this power to issue pardons in a wide range of matters throughout the country’s history. However, no president has ever attempted to pardon himself.
As a result, the legality of the self-pardon remains an open question. There are persuasive arguments on both sides. For the sake of brevity, the two arguments can be boiled down to this: (1) those that argue a self-pardon violates longstanding legal principals that a person should not act as their own judge and that no person is above the law; and (2) those, including Richard Nixon’s attorneys in the aftermath of Watergate, that argue that power to pardon is broad and unlimited, except for the two specific limitations mentioned in the Constitution.
So, assuming Clinton follows the latter approach and issues the self-pardon, where does that leave Congress? Could the House of Representatives start impeachment proceedings based on the criminal indictments?
That answer to that question is a resounding “no.”
Under Article II, Section 4 of the Constitution, “The President… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The Constitution further provides that impeachment proceedings are to begin in the House of Representatives and if approved by a simple majority vote, the matter proceeds to the Senate for trial. When the president is tried, the Chief Justice presides over the Senate trial. A conviction requires a 2/3-majority vote and the Senate may impose punishment including barring the individual from holding future office. Although, the Senate is required to take an additional vote if it wishes to impose a ban on holding future office.
In Clinton’s case, however, the conduct underlying this hypothetical indictment occurred prior to her taking office. The House of Representatives, as far back as 1873, has determined that a person cannot be impeached based on conduct prior to them holding office. In other words, House precedent says a President Hillary Clinton could not be impeached as president for crimes related to the e-mail server or the Clinton Foundation.
In 1873, the House of Representatives considered impeaching the Vice President for crimes committed before he took office. After considering the matter, the House determined impeachment was only proper for crimes committed while in office.
So, under this precedent, a President Hillary Clinton could pardon herself without the Congress being able to do anything about it.
However, all options may not be exhausted. There remains a possibility that self-pardon is grounds for impeachment as an abuse of power. Furthermore, there is the possibility of impeaching Clinton back from her time as Secretary of State.
This is an opinion piece. The views expressed in this article are those of the author.
A version of this article was first published on May 23, 2016, but this article has been updated with new information.
This is an opinion piece. The views expressed in this article are those of just the author.