Will President Obama pardon former Secretary of State Hillary Clinton? That’s been a concern of some who want badly to “bring her to justice” for her questionable use of emails over a private server while serving as Secretary of State.

Article II, Section 2 of the U.S. Constitution awards the President “…power to grant reprieves and pardons for offenses against the United States.” That power is irrevocable and irreversible. Needless to say, that has led to a fair number of controversial Presidential pardons in our history. This raises intriguing questions.

Can a President issue a pardon for anticipated indictments?

Yes. President Gerald Ford gave Richard Nixon a full and unconditional pardon for any crimes he may have committed while in office. This was highly controversial at the time and may have helped cause Ford’s re-election efforts to come to naught. There were many who wanted Nixon to “pay” for his alleged crimes.

President Andrew Johnson declared a general amnesty on Christmas Day of 1868 that unconditionally pardoned all who had fought for the Confederacy during the Civil War. Hence, none could be tried for treason. Earlier, after Lincoln’s murder and before Congress came into session after the war, President Johnson issued pardons to a significant number of former Confederate officials and officers. Thus, many of them were elected back into office by their states prior to Congress coming back into session. Congress refused to seat them.

Can a President issue a pardon for an indictment even though the individual has not yet been convicted?

Yes. President George H.W. Bush did that for Caspar Weinberger, former Secretary of Defense, who was charged with two counts of perjury and one count of obstruction of justice in 1992. This stopped all the legal proceedings for all of those involved in the Iran Contra affair, which included President George H.W. Bush. That is a significant precedent when one considers the concern noted at the start of this essay.

Prior to Weinberger’s pardon, in 1991, President George H.W. Bush pardoned former Assistant Secretary of State for Inter-American affairs Elliot Abrams who had been convicted of two misdemeanor charges for his involvement in the Iran Contra scandal.

Can a President issue a pardon for someone lawfully convicted and is in prison?

Yes. This has been the most common use of presidential pardons in our history and has often been controversial. Here’s a short list of some of the more controversial pardons:

1. President George Washington pardoned two convicted of treason for their part in the infamous Whiskey rebellion.

2. Andrew Jackson pardoned George Wilson in 1830 for murder and robbing rail trains. However, inexplicably, Wilson refused to accept the pardon and was hanged.

3. James Buchanan pardoned Brigham Young in 1858 for his role in the Utah War which was a standoff against the U.S. Army. A group of Mormons, allegedly under Young’s orders, had killed over 100 civilian members of a California bound wagon train.

4. Warren Harding commuted in 1921 Eugene V. Debs prison sentence to time served for violating the Sedition Act by encouraging resistance to the military draft in WWI.

5. Richard Nixon commuted Jimmy Hoffa’s sentence for jury tampering, mail fraud, and improper use of Teamster funds. Hoffa was later rumored to be “sleeping with the fishes”.

6. Ronald Reagan pardoned George Steinberger (illegal contributions to Nixon’s 1972 re-election campaign); Junior Johnson (for his moonshining past!); Rick Hendrick (mail fraud for smuggling Hondas); and, most controversial of all and against the advice of his own Justice Department, Mark Felt (Deep Throat) and Edward Miller—the highest ranking convicted criminals in the FBI– for being involved in invading Vietnam protesters’ homes and offices during Nixon’s presidency.

7. George H.W. Bush pardoned Aslam P. Adam two days before leaving office without explanation. Adam had been a Pakistani heroin drug trafficker and had served eight years of his 55 year federal prison sentence.

8. Bill Clinton pardoned 140 criminals on his last day of office including his own half-brother Roger Clinton (cocaine distribution, but Roger went on to commit a drunk driving and disturbing the peace crime one month later); Marc Rich (tax evasion, tax fraud, and running illegal oil deals with Iran during the hostage crisis); and, under former President Carter’s urging, President Clinton issued a full pardon for Patty Hearst after Carter had commuted her sentence for bank robbery. Clinton set the all-time historical record for the number of pardons on one day.

So, what about Hillary?

As one can see, there are plenty of precedents for the possibility of President Obama issuing a pardon either before or after Clinton is indicted or even after being convicted. My operating hypothesis, for what it is worth, is that Obama will not issue any pardon prior to the election. That, one would think, would be a political kiss of death for Hillary’s election possibilities. If he’s going to issue one, most likely it would come after the election especially if she loses the election.

And, now, one final question just for fun:

Can an official be elected while in jail?

Believe it or not, the answer is yes. Three come to mind: (source)

1. First, Vermont Congressman Matthew Lyon was re-elected while in jail for violating the 1798 Sedition Act. After being released, he went to Washington, D.C. and eventually cast the deciding vote in the House of Representatives for the election of Thomas Jefferson.
2. “A half-century later, an anti-Catholic crusader named Joseph Barker was elected mayor of Pittsburgh while serving a yearlong sentence for inciting a riot. The severity of Barker’s sentence scandalized the city, and he quickly became a popular candidate for mayor. Fortunately for Barker, he didn’t have to govern from behind bars: The night of the election, a mob of his supporters stormed the city jail and threatened the sheriff until he OKed Barker’s immediate release. It soon became apparent to Pittsburghers that they’d elected a paranoid crackpot, however, and Barker was turned out in the next election.
3. The most fitting example from American history might be James Michael Curley, the popular and corrupt Boston politician often credited with coining the winking phrase, “Vote early and often.” He won an alderman’s seat in 1904 while serving time for impersonating a friend and taking the civil-service exam. Then in 1947, in the middle of his final term as Boston’s mayor, he was convicted of mail fraud. When he went to jail, he refused to relinquish the mayor’s office, although it’s unclear how much day-to-day influence he exerted over the city during his incarceration. Curley served just five months before President Harry Truman pardoned him; the president was responding in large part to a petition listing the names of over 100,000 Boston residents.”

On a personal note, I learned about Curley while I was a youth living in the Boston area. My Mom was active in politics at the time and enjoyed telling myself and my younger siblings about Mayor Curley.

I’ll end, therefore, with this. Could Hillary be elected President while serving in jail? Maybe that would prove she has an arresting personality.

Dr. Arthur Pitz, History Behind the News