Will Obama pardon Clinton? And if he does, will she accept?By David Weisberg, contributor - 12/27/16 01:00 PM EST
In dashing through his last few weeks in office, will one of Obama's final acts be to pardon Hillary Clinton for any violations of federal law she might have committed while she was secretary of State?
It's an interesting and complex question.
We should first note that the Obama administration's decision not to prosecute Clinton would not bind the Trump administration. Until relevant statutes of limitations have expired, she could still be prosecuted by the new administration. It is possible, in my opinion, for Clinton to be prosecuted for either her improper handling of classified information on her "home brew" email server or allegations of "pay to play" arrangements between the secretary of State and donors to the Clinton Foundation, which could constitute bribery.
The statute of limitations for most federal crimes is five years from the commission of the offense; that would apply to the two categories relevant to Clinton. Her tenure as secretary of State ended Feb. 1, 2013, so it is possible that the statute of limitations will not run until Feb. 1, 2018, more than a year after Donald Trump takes office.
What looks like one question — will the president pardon Clinton? — turns out, on analysis, to be two. The first question is: Would Clinton wish to receive a pardon?
That question seems to be a proverbial no-brainer. Surely, any person who had been in federal government would be eager to receive a presidential pardon, because it eliminates even the possibility of federal prosecution. That looks like all upside and no downside.
But there is a downside, and it isn't trivial. A pardon must be accepted by the person who is pardoned if it is to effectively stymie any prosecution.
Furthermore, there is solid legal precedent that acceptance of a pardon is equivalent to confession of guilt. A U.S. Supreme Court case from 1915 called Burdick v. U.S. establishes that principle; it has never been overturned.
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