The Clinton Predicament – To Pardon Or Not To Pardon

By Lorie Shaull - Own work, CC BY-SA 4.0,
By Lorie Shaull – Own work, CC BY-SA 4.0,

It is a certainty that democrat leadership is discussing “The Clinton Predicament” and whether President Obama should preemptively pardon Hillary Clinton or not. More probably both democrat and republican leadership are discussing this very subject, with January 20th fast approaching.


Yesterday there were at least several articles out there that discussed Clinton’s prosecution. One article claimed that when Senator Jeff sessions recused himself from any future prosecution of Hillary Clinton, he was telegraphing that a prosecution was in the plans. More than one person made that observation. This is where things start to get interesting, so stay with me.

When a President confers a pardon on someone, I’m told it can be for a crime they have not even been prosecuted for, such as the case was with President Richard Nixon. However, it is not for future crimes. That is a really important point here. Allow me to explain.

One might say if Hillary Clinton was subpoenaed to appear before Congress or the courts to answer questions about her illegal email server or the inner workings of the Clinton Foundation or any other potential criminal act, that there is no point because she is immune from prosecution for all crimes previous to the pardon. You would be right, only in that she is immune from prosecution for pardoned crimes. Next, the real stinger.

What would be the point of such a subpoena? Well, once a pardon is in place, the ability to incriminate oneself and subject oneself to legal harm, no longer exists. Much smarter men than I are arguing that if there is no potential self incrimination, there is no constitutional freedom to remain silent when questioned. It appears that one can be forced to testify truthfully on these matters. It also stands to reason that if she lied when put under oath, she could be prosecuted for that, because pardons are only valid for potential crimes committed up to the time the pardon is issued. The same seems to be true for Miranda rights because they are founded on the same right for a person to avoid self incrimination.

The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to “an accusation or charge of crime,” or as involving oneself (or another person) “in a criminal prosecution or the danger thereof.”

A pardon would destroy Hillary Clinton’s political future with presumed guilt. It would also potentially expose the entire Democrat Party apparatus to incalculable political damage by association because she could potentially be compelled to testify on a myriad of subjects. Such a subpoena would, no doubt, yield charges against at least some of Clinton’s associates, and would set the historical record straight about the state of American politics in the early 21st century.

Not being pardoned would expose Hillary Clinton to real prosecution for lying to congress and for violating security laws, at minimum. She may decide not to walk the walk of shame alone by testifying against others involved, in exchange for leniency. Most certainly, the Democrat Party apparatus would suffer big political damage.

President Obama must decide whether to pardon her or not. The implications of either choice are potentially titanic in impact, hence the title “The Clinton Predicament.” If you had the president’s ear, how would you advise him, and why?