# Will Obama pardon Clinton and should she accept? **URL:** \ **Category:** Great Debates\ **Created:** [December 28, 2016, 11:29am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766 "2016-12-28T11:29:56Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 28, 2016, 3:58pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/21 "2016-12-28T15:58:00Z")
> [@DrCube](#): > > How does one accept a pardon? What the President says, goes, right? If the President pardons someone who is already in jail, can they just say “nah, I like it here, three hots and a cot, with no job and no bills, thanks but no thanks”? Yes, someone can say that. The seminal case is _Burdick v. US_, 236 U.S. 79 (1915). In that case Burdick, a newspaper editor, literally refused to accept a piece of paper containing Woodrow Wilson’s pardon of him for any crimes relating (oddly enough, considering this thread!) to the unauthorized disclosure of supposedly secret Treasury Department information. Burdick had been responsible for articles in the New York Tribune about fraudulent Customs activity and a federal grand jury subpoenaed him to inquire as to the paper’s sources. Burdick refused to answer their questions by taking the Fifth – that is, that his answers might tend to incriminate him. He was summoned again and handed a pardon from the President – the implication being that now the Fifth Amendment would no longer be available to him because the pardon meant that he was no longer incriminated by his answers. Refusal generally does not have to mean rejecting a piece of paper, though, because acceptance of the pardon means invoking its effects. That is, the presence of a pardon is for the accused to assert. It does not serve as an automatic dissolution of a prosecution attempt; the person being charged is obligated to bring the pardon to the court’s attention. A convicted prisoner would need to invoke the pardon as a reason for his immediate release, and thus accept it. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [December 28, 2016, 4:03pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/22 "2016-12-28T16:03:12Z")
> [@Bricker](#): > > Yes, someone can say that. > > The seminal case is _Burdick v. US_, 236 U.S. 79 (1915). In that case Burdick, a newspaper editor, literally refused to accept a piece of paper containing Woodrow Wilson’s pardon of him for any crimes relating (oddly enough, considering this thread!) to the unauthorized disclosure of supposedly secret Treasury Department information. Burdick had been responsible for articles in the New York Tribune about fraudulent Customs activity and a federal grand jury subpoenaed him to inquire as to the paper’s sources. Burdick refused to answer their questions by taking the Fifth – that is, that his answers might tend to incriminate him. He was summoned again and handed a pardon from the President – the implication being that now the Fifth Amendment would no longer be available to him because the pardon meant that he was no longer incriminated by his answers. > > Refusal generally does not have to mean rejecting a piece of paper, though, because acceptance of the pardon means invoking its effects. That is, the presence of a pardon is for the accused to assert. It does not serve as an automatic dissolution of a prosecution attempt; the person being charged is obligated to bring the pardon to the court’s attention. > > A convicted prisoner would need to invoke the pardon as a reason for his immediate release, and thus accept it. That’s really awesome. Thanks for sharing that. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [December 28, 2016, 4:49pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/23 "2016-12-28T16:49:26Z")
No, but if he did then yes to the second question. ---
**Author:** ![Jack\_Batty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jack_batty/32/3201_2.png) [@Jack\_Batty](https://boards.straightdope.com/u/Jack_Batty)\ **Post date:** [December 28, 2016, 4:53pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/24 "2016-12-28T16:53:04Z")
I’ve said it before, I’ll say it again. If Obama issues a pardon to Clinton over that bullshit email issue, he may as well make it a blanket pardon to cover Condoleezza Rice and Colin Powell as well ---
**Author:** ![Corry\_El](https://avatars.discourse-cdn.com/v4/letter/c/ecae2f/32.png) [@Corry\_El](https://boards.straightdope.com/u/Corry_El)\ **Post date:** [December 28, 2016, 5:15pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/25 "2016-12-28T17:15:28Z")
People are prosecuted under federal law (not to mention other) or pressured into plea, immunity, testimony type deals with less evidence than against Hillary Clinton. You’re really in the left bubble if you won’t acknowledge that. Keep in mind, that includes plenty of cases where they arguably should not be, and/or where somebody else is not on the same evidence. So the idea of absolute legal protection for her by way of ‘the truth’ is seriously flawed, and a private person under those circumstances would be foolish to rely on it, as opposed to just taking the pardon. However she is not a regular private person but one with a high profile public reputation as a big part of her ‘possessions’ in life, even though not successful in her long term and ultimate goal of reaching the presidency. And the implicit admission of guilt would extend politically, not legally but politically, to Obama and the Democratic Party (among other things, the reaction of the Democratic loyalists likely to say ‘but she didn’t do _anything_ wrong AT ALL!’). So Obama has his own reasons not to do this whatever Clinton may feel. When last this came up it seemed likely Clinton would win, and if so no reason to take on such a reputational stain at the start of her admin when her VP might pardon her or even she pardon herself (not excluded by the wording in the Constitution) if the need arose later. I said at the time it was a lot more likely on the apparently smaller chance that Trump would win, especially as he was explicitly saying at the time he’d go after her. Now on reflection I still think it’s not that likely. But of course Trump winning ‘wasn’t that likely’. So who knows. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [December 28, 2016, 5:40pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/26 "2016-12-28T17:40:45Z")
The right-wing fantasy porn of Clinton actually being convicted of anything is not relevant to reality. And that’s what 90+% of the bullshit that the GOP was pushing onto Clinton in the last 30 years has been. Right-wing revenge fantasy porn. No pardon needed. No pardon issued. No pardon accepted. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 28, 2016, 5:44pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/27 "2016-12-28T17:44:54Z")
> [@Bricker](#): > > This is true also with Clinton’s conduct. > > 18 USC § 793(f) provides anyone who, through gross negligence, transmits classified information to an unauthorized person is subject to fine or imprisonment. Comey’s point was that no one has ever been prosecuted for negligently violating this law – despite a constant barrage of claims like, “If I did that, I’d be in jail!” the truth is that prosecutors have never chosen to bring criminal charges unless the motives for disclosure went beyond negligence and into profit, or emnity/revenge/animus. > > [snip] > > tl;dr – she technically did commit a crime, and it’s possible but unlikely that she would need a pardon because Trump has shown himself vindictive, unethical, and unpredictable. I admit I haven’t followed this controversy as closely as others, but is there any allegation she transmitted classified information to an unauthorized person, even negligently? I thought the allegation was she received and kept classified information on an unsecured server. No one, as far as I recall, who was unauthorized ever got any classified documents from her. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 28, 2016, 6:13pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/28 "2016-12-28T18:13:08Z")
> [@Bricker](#): > > Comey’s speech was very clear about the results of his investigation. He explained how Clinton’s conduct was not anything that would normally be prosecuted. > > But that’s not the same thing as ‘not committed a crime.’ > > Here is an analogy: you are walking along your favorite hiking trail and you see a magnificent sight. A bald eagle swoops down and kills a young raccoon caught in the open. (Well, grisly and magnificent all at once, perhaps). As the bird flies away with its prize, you see a single feather left behind on the ground and decide to keep it, at least long enough to validate your story as you tell your friends. > > This is not the kind of conduct that would normally be prosecutable. I doubt the federal government would ever choose to ask a grand jury to indict you for those facts. > > But it’s a crime: as everyone should remember, 16 U.S.C. § 668(a) provides that anyone who knowingly transports or possesses any part of a American bald eagle shall be fined not more than $5,000 or imprisoned not more than one year or both. There is an exception for scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Native Americans, but not for your desire to commemorate your sight of the eagle on your hike. > > In shorter words: it’s technically a crime, but not a set of facts that would ever be prosecuted. > > This is true also with Clinton’s conduct. > > 18 USC § 793(f) provides anyone who, through gross negligence, transmits classified information to an unauthorized person is subject to fine or imprisonment. Comey’s point was that no one has ever been prosecuted for negligently violating this law – despite a constant barrage of claims like, “If I did that, I’d be in jail!” the truth is that prosecutors have never chosen to bring criminal charges unless the motives for disclosure went beyond negligence and into profit, or emnity/revenge/animus. > > We don’t typically prosecute people for picking up the feather, in other words, even though the act is technically a crime. In Clinton’s case, the strict letter of the law is that her acts could certainly serve as the basis for an indictment, and if a jury believed her conduct was grossly negligent, is legally sufficient to sustain a conviction. > > It’s just never done, because it’s a hypertechnical application of the law. > > tl;dr – she technically did commit a crime, and it’s possible but unlikely that she would need a pardon because Trump has shown himself vindictive, unethical, and unpredictable. I disagree, assumes facts not in evidence. “gross negligence” has not been shown. So, she _might_ have committed a crime. Going back to the feather- You find a cool feather on the ground, and put in your hat. You have no idea what bird it comes from. Later a ranger informs you it is from a Bald eagle. Up to that point, “knowingly” is a relevant issue. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [December 28, 2016, 6:46pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/29 "2016-12-28T18:46:19Z")
> [@Corry\_El](#): > > People are prosecuted under federal law (not to mention other) or pressured into plea, immunity, testimony type deals with less evidence than against Hillary Clinton. You’re really in the left bubble if you won’t acknowledge that. Keep in mind, that includes plenty of cases where they arguably should not be, and/or where somebody else is not on the same evidence. > > So the idea of absolute legal protection for her by way of ‘the truth’ is seriously flawed, Comey said no one in the hundred years of the law’s existence had been prosecuted under a similar set of evidence and intent. Is he in the left wing bubble? ---
**Author:** ![Corry\_El](https://avatars.discourse-cdn.com/v4/letter/c/ecae2f/32.png) [@Corry\_El](https://boards.straightdope.com/u/Corry_El)\ **Post date:** [December 28, 2016, 9:30pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/30 "2016-12-28T21:30:17Z")
> [@CarnalK](#): > > Comey said no one in the hundred years of the law’s existence had been prosecuted under a similar set of evidence and intent. Is he in the left wing bubble? He said: “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.” So yes as we all know but just to have it in thread, he said he believed similar cases hadn’t resulted in prosecutions, though no ‘100 years’. But somebody else could say differently. To me the left bubble is to pretend she was clearly blameless enough to rely on ‘the truth’. Again note, this is not a statement of the absolute truth of her criminal culpability. But it’s easy for federal authorities to go after who they want to go after, without that person having high confidence of an acquittal or a conviction eventually being thrown out, though either would probably be quite possible in this case. I doubt the partisans saying she’s totally obviously innocent would really feel that way if in the cross hairs themselves and a lawyer gave them the obvious legal advice: “take the pardon”. But I don’t think one will be offered in this case, largely based on Obama’s consideration of the political reaction from folks like you, as well as the one on the other side saying ‘see we told ya’. This is somebody he (ostensibly at least) strongly supported. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 28, 2016, 10:04pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/31 "2016-12-28T22:04:53Z")
> [@Corry\_El](#): > > I doubt the partisans saying she’s totally obviously innocent… Innocent of a _crime_, yes. Of a **major screw up and judgement error-** no. ---
**Author:** ![Patx2](https://avatars.discourse-cdn.com/v4/letter/p/73ab20/32.png) [@Patx2](https://boards.straightdope.com/u/Patx2)\ **Post date:** [December 28, 2016, 11:15pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/32 "2016-12-28T23:15:57Z")
> [@aldiboronti](#): > > Because Trump might go after her anyway, that’s why, and it’s just possible that if a prosecution flung enough dirt some of it might stick. But if Trump were to decide to pursue an investigation, he would be president. Obama would already be out of office so how could he pardon her? Unless I’m missing something, I don’t think as president elect he has the authority to do anything and hypothetically, if he did, things would have to move at the speed of light to investigate and then pardon if one were necessary. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [December 28, 2016, 11:31pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/33 "2016-12-28T23:31:49Z")
> [@John\_Mace](#): > > Honest question: Did either of you read the link in the OP? Yes, I did. From your quote: > [@](#): > > It is possible, **in my opinion** , for Clinton to be prosecuted for either… It is possible to prosecute for just about anything and I respect that writer’s right to his opinion. My opinion is that nothing that Mrs. Clinton did rises to the level of a crime. Thus far, she has not been convicted of anything, so I don’t see where my opinion needs to be revised. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [December 29, 2016, 3:48am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/34 "2016-12-29T03:48:15Z")
> [@The\_Other\_Waldo\_Pepper](#): > > How do you figure? > > I mean, here we are in Obama’s lame-duck days, considering this – and if Hillary _doesn’t_ get pardoned, and _does_ get prosecuted, then all the Trump administration has to do in _its_ lame-duck days, is, y’know, pardons all around. > [@stpauler](#): > > And there is precedent for it. [Gerald Ford pardoned Nixon:](http://watergate.info/1974/09/08/ford-pardons-nixon.html) > > > [@](#): > > > > There are no historic or legal precedents to which I can turn in this matter, none that precisely fit the circumstances of a private citizen who has resigned the Presidency of the United States. But it is common knowledge that serious allegations and accusations hang like a sword over our former President’s head, threatening his health as he tries to reshape his life, a great part of which was spent in the service of this country and by the mandate of its people. > > > > After years of bitter controversy and divisive national debate, I have been advised, and I am compelled to conclude that many months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court. > > So Ford gave clemency to Nixon to avoid any future issues regardless if Nixon was found guilty or not. Unfortunately, the Merv Griffin Show is still under copyright protections and all I’ve been able to find are short clips of the 1979 interview used as advertising to hock selling copies of the interviews … as such any claims I would make about this interview five years after the fact could not be properly cited … **stpauler** has a quote from 1974 concerning this event … so I would carry that forward and say “I am compelled to conclude that many months and perhaps more years will have to pass before **Hillary Clinton** could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court.” But of course that the Saudi prince got two hours face-time with The Donald had _ **absolutely nothing** _ to do with the $10m donation to the Trump Foundation the day before … honest … [wink wink nudge nudge] … I’m sorry … **The Other Waldo Pepper** … I don’t think The Donald’s presidency will be a lame duck the _entire_ four years … and I honestly don’t think The Donald will invest all his time into prosecuting Hillary … remember back during the Watergate scandal … how all the media and politics was so consumed by the affair … how it so dominated the nation’s mind at the expense of all the other pressing matters … I can’t blame Ford for dropping the matter … not with everything else he had to deal with … … like OPEC … ---
**Author:** ![Common\_Tater](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/common_tater/32/13846_2.png) [@Common\_Tater](https://boards.straightdope.com/u/Common_Tater)\ **Post date:** [December 29, 2016, 4:06am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/35 "2016-12-29T04:06:31Z")
> [@Procrustus](#): > > I admit I haven’t followed this controversy as closely as others, but is there any allegation she transmitted classified information to an unauthorized person, even negligently? I thought the allegation was she received and kept classified information on an unsecured server. No one, as far as I recall, who was unauthorized ever got any classified documents from her. Are you kidding? Her fucking maid was printing off the daily presidential brief or somesuch. The whole episode is so fucking insane I still can’t believe it. The whole state department shitshow passed through unsecure computer servers, to include satellite imagery and all kinds ot TS stuff, was downloaded to thumbdrives, and posessed by folks with no clearance, or even members of the administration. Conducting official .gov business, even if not classified, on homebrew computers and a Hotmail account is just major league stupid. Nobody has every adequately explained any convincing manner why she would legitimately need to do this. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 29, 2016, 5:02am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/36 "2016-12-29T05:02:08Z")
> [@DrDeth](#): > > I disagree, assumes facts not in evidence. “gross negligence” has not been shown. > > So, she _might_ have committed a crime. This conclusion rests on what the standard for gross negligence is under federal law. Can you share your understanding of that standard here? > [@](#): > > Going back to the feather- You find a cool feather on the ground, and put in your hat. You have no idea what bird it comes from. Later a ranger informs you it is from a Bald eagle. Up to that point, “knowingly” is a relevant issue. That’s essentially correct. “Knowingly,” requires the government to prove that you knew, _or should have known_, that the feather came from an eagle. It does not require the government to prove you knew the possession of eagle feathers was a crime. But constructive knowledge is sufficient. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 29, 2016, 5:18am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/37 "2016-12-29T05:18:28Z")
> [@Procrustus](#): > > I admit I haven’t followed this controversy as closely as others, but is there any allegation she transmitted classified information to an unauthorized person, even negligently? I thought the allegation was she received and kept classified information on an unsecured server. No one, as far as I recall, who was unauthorized ever got any classified documents from her. I should have quoted the statute instead of paraphrasing. 18 USC § 793(f): > [@](#): > > Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer— > Shall be fined under this title or imprisoned not more than ten years, or both. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 29, 2016, 5:47am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/38 "2016-12-29T05:47:47Z")
The question “…should she accept it…” gets me to wondering: Does she have a choice? If a pardon is issued, can she nullify it at will? ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [December 29, 2016, 5:58am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/39 "2016-12-29T05:58:49Z")
> [@Common\_Tater](#): > > **Are you kidding? Her fucking maid was printing off the daily presidential brief or somesuch.** The whole episode is so fucking insane I still can’t believe it. The whole state department shitshow passed through unsecure computer servers, to include satellite imagery and all kinds ot TS stuff, was downloaded to thumbdrives, and posessed by folks with no clearance, or even members of the administration. Conducting official .gov business, even if not classified, on homebrew computers and a Hotmail account is just major league stupid. > > Nobody has every adequately explained any convincing manner why she would legitimately need to do this. And yet not a single Congressional investigation picked that up. And somehow, the FBI missed it. I suspect more disinformation. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 29, 2016, 5:59am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/40 "2016-12-29T05:59:54Z")
> [@elucidator](#): > > The question “…should she accept it…” gets me to wondering: Does she have a choice? If a pardon is issued, can she nullify it at will? If a pardon is issued, she can refuse to accept it, which renders it a nullity, as I explained in post 21 above. [Previous page](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766.md?page=1) [Next page](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766.md?page=3)