# 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:** 11\ **Page:** 3
**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, 7:47am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/41 "2016-12-29T07:47:36Z")
Well, I forgot to get you a Christmas present, so this will make up for it. ---
**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 29, 2016, 1:29pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/42 "2016-12-29T13:29:57Z")
> [@Corry\_El](#): > > 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. I misremembered slightly but he certainly did bring up 100 years: > [@](#): > > He said the Justice Department has applied that 1917 law only once over the years; and knowing the Justice Department as he does, “No reasonable prosecutor would bring the second case in 100 years focused on gross negligence,” Comey said. > > “I know the Department of Justice, I know no reasonable prosecutor would bring this case. I know a lot of my former friends are out there saying they would. I wonder where they were in the last 40 years, because I’d like to see the cases they brought on gross negligence. Nobody would, nobody did.” ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 29, 2016, 6:15pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/43 "2016-12-29T18:15:33Z")
> [@Bricker](#): > > This conclusion rests on what the standard for gross negligence is under federal law. > > Can you share your understanding of that standard here? > > 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. I dont have to. Isnt whether or not she was guilty of \* gross negligence\* up to a judge and a Jury and not a lawyer on a message board? _You_ may indeed read\* the standard for gross negligence under federal law\* and your opinion may be she met that standard, but unless a Judge and Jury agree, it’s simply that- your opinion. So, like I said \*assumes facts not in evidence. \* ---
**Author:** ![Grumman](https://avatars.discourse-cdn.com/v4/letter/g/43a26b/32.png) [@Grumman](https://boards.straightdope.com/u/Grumman)\ **Post date:** [December 29, 2016, 6:15pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/44 "2016-12-29T18:15:58Z")
> [@stpauler](#): > > And there is precedent for it. [Gerald Ford pardoned Nixon:](http://watergate.info/1974/09/08/ford-pardons-nixon.html) An act which should have got them both hanged, in my opinion. ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [December 29, 2016, 6:36pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/45 "2016-12-29T18:36:20Z")
> [@Procrustus](#): > > She’s history, and irrelevant. (Sad) I don’t know about this. The Republicans and Trump in particular have a whole lot invested in the destruction of Clinton. I don’t think that they will try to prosecute her, but I wouldn’t be surprised if 3 years down the road, Trump still brings up “crooked Hillary” as a sacrificial scapegoat. ---
**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, 6:51pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/46 "2016-12-29T18:51:30Z")
> [@DrDeth](#): > > I dont have to. Isnt whether or not she was guilty of \* gross negligence\* up to a judge and a Jury and not a lawyer on a message board? _You_ may indeed read\* the standard for gross negligence under federal law\* and your opinion may be she met that standard, but unless a Judge and Jury agree, it’s simply that- your opinion. > > So, like I said \*assumes facts not in evidence. \* No, **DrDeth** , although the fault is mine for an imperfect tl;dr summary. I said: > [@Bricker](#): > > 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. I then availed myself of a very brief summary statement that said in part, “…she technically did commit a crime, and it’s possible but unlikely that she would need a pardon …” You’re correct that this summary seems to say she definitively did commit a crime. But it’s a summary of what I wrote in longer form above, and marked by the “tl;dr” convention. So for discussion, there are two questions present. One is, “What is the correct standard that the judge would use to instruct the jury?” That is: the jury is the finder of fact. They hear evidence and decide how to resolve any conflicts in that evidence. If Ty testifies that Phil is the man who held a gun up and demanded money from the cash register, and Phil testifies that he was a hundred miles away digging a tomato garden when it happened, the jury must decide who they believe: they are asked to determine a fact, in other words, about who the person with the gun was. But the question of law is not judge and jury specific: does the act of holding a gun up and demanding money, _if that act happened_, constitute a crime? If so, what crime? That’s a question that requires knowledge of what standards exist in law for various elements of crimes that involve guns, people, and cash registers. It also does not require a judge or jury. It’s not tied to the facts of a particular case. The second question is what you’re focused on: “What would the jury actually decide, given these facts?” And of course the answer is unknowable, but it’s extremely possible that a jury would decide that Ty was unreliable and Phil convincing. But a jury that believed Ty and disbelieved Phil could convict him of robbery. Now consider a similar case. At Sofia’s trial, Gloria testifies that Sofia left the store and later Ed entered holding a gun and demanded money. Sofia denies any wrongdoing, but the prosecution asks the jury to convict Sofia for conspiracy to commit robbery under the theory that she was working with Ed. Here, what the jury believes is not relevant: even if they believe every word Gloria says and completely disbelieve Sofia’s claims of innocence, there is not any evidence that meets the standard for conspiracy. So if you and I were discussing this case, and I asked you what you knew about the elements of conspiracy, you might respond that you didn’t need to know them: that your point was that Sofia hadn’t been convicted yet. “Yes,” I might reply, “But we’re discussing whether the facts alleged against her, if true, constitute a crime.” That’s also the situation here. Is it correct to say that the facts laid out by the FBI are legally sufficient to describe a crime, even if it’s one that would never actually be prosecuted? ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [December 29, 2016, 11:46pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/47 "2016-12-29T23:46:59Z")
> [@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. Does the same principle apply to immunity to prosecution? That is, can a person decline immunity to prosecution in order to continue to assert 5th-amendment privilege? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 30, 2016, 12:14am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/48 "2016-12-30T00:14:19Z")
> [@Pleonast](#): > > Does the same principle apply to immunity to prosecution? That is, can a person decline immunity to prosecution in order to continue to assert 5th-amendment privilege? No. The principle there is that immunity does not carry with it any imputation of guilt. Worse still, the courts have held that _use immunity_, as opposed to the more secure _transactional immunity_, is sufficient to cover the Fifth Amendment protection. More details if anyone’s interested, though this is kind of a hijack. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [December 30, 2016, 9:56am UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/49 "2016-12-30T09:56:24Z")
Personally I don’t really believe that **elucidator** ’s failure to get **Bricker** a Christmas present involved him _forgetting_ anything… ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 30, 2016, 3:55pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/50 "2016-12-30T15:55:44Z")
I tried to get some clean coal for his stocking, but couldn’t find any. ---
**Author:** ![Superdude](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/superdude/32/13450_2.png) [@Superdude](https://boards.straightdope.com/u/Superdude)\ **Post date:** [December 31, 2016, 10:06pm UTC](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766/51 "2016-12-31T22:06:24Z")
> [@Bricker](#): > > If a pardon is issued, she can refuse to accept it, which renders it a nullity, as I explained in post 21 above. That brings to my mind a question, if you’d continue the hijack for another post or two: What it the mechanism behind a declined pardon? Does it have to be written/signed that the person declining the pardon is doing so? Is a verbal declination permissible? Do witnesses have to be present? What’s to stop a politician (or other official) from lying, an saying, “I offered a pardon. But he refused it?” [Previous page](https://boards.straightdope.com/t/will-obama-pardon-clinton-and-should-she-accept/775766.md?page=2)