Should Obama just pardon Hillary?

“Lock her up!” has become a perpetual chant at Donald Trump rallies. At the same time, aggressive elements within the FBI are apparently resisting career prosecutors, who have determined that evidence does not warrant new criminal investigations of Hillary Clinton. There are even disturbing hints at congressional pressure for the FBI to keep investigations going.

It does not take much clairvoyance to predict that Clinton’s most strident opponents may seek to extend the use criminal investigations as a political tactic to undermine her presidency if she wins the election next week. That prospect triggers a startling idea: Should President Barack Obama simply pardon Clinton if she wins the election?

{mosads}The pardon power is typically used to extend mercy to individuals who have been convicted of crimes, but there is also a tradition of using the power as a tool of political reconciliation. President Gerald Ford’s pardon of Richard Nixon for Watergate crimes is probably the highest profile example. But there have been other instances.

As he left office, George Washington pardoned the men who had led the Whiskey Rebellion, an armed revolt against the federal government’s power to tax. President Andrew Johnson also issued thousands of pardons to ex-Confederates after the Civil War. A more modern example is President Jimmy Carter’s grant of amnesty for draft-evasion during the Vietnam War. The rationale has been to move forward and not remain mired in retrospective criminal proceedings.

That attitude is not alien to President Obama. In two instances he has exhibited it. He resisted pressure to prosecute Bush Administration officials for war crimes or human rights abuses stemming from torture, and he resisted pressure to prosecute bankers for any unlawful activity relating to the 2008 financial collapse. In neither case did Obama use the pardon power, but the result in both instances was an effective pardon in an effort to move on.

The allegations against Clinton seem minute compared to the subjects of previous efforts at reconciliation. Although FBI Director James Comey called Clinton’s handling of classified information “extremely careless,” he determined that it did not remotely rise to the level of a prosecutable violation. The endless carping about “Benghazi” has produced virtually nothing of moment, and neither formal nor media inquiries into the Clinton Foundation have uncovered any clear example of a “pay-to-play” scheme. Some Clinton opponents are now predictably grasping at the last resort: an attempted charge of perjury. Historians may ultimately see this as little more than an effort to criminalize political animosity.

A presidential pardon could short circuit some of this maneuvering. The Constitution gives the president the power “to grant reprieves and pardons for offenses against the United States,” and it could be used here. The public is aware of the allegations against Clinton, yet she has continued to lead in election polls. If voters choose her for the presidency, their decision that the allegations are not disqualifying deserves respect. A presidential pardon could ratify that assessment.

But what if a “smoking gun” eventually emerged? The president’s pardon power has a major exception. He cannot immunize anyone from impeachment or removal from office. Congress has the exclusive power over those important proceedings. They would remain options in the event that compelling evidence of a crime ultimately did emerge against Clinton, however unlikely that may seem.

Frankly, Congress is where these matters belong anyway. The criminal inquiries have been proceeded from the start in the shadow of intense political objectives. Rhetoric to the contrary, the political goal of Clinton opponents has not really been to “Lock her up!” It has been hobbling her as president or even removing her from office. Those are political considerations. Relegating this fight to Congress where it belongs could extricate the Justice Department and FBI from what may now be a hopelessly politicized process and relieve them from more crossfire, pressure, and intrigue.

Obviously, there are major disincentives to the issuance of a pardon here. Obama surely has little desire to have such an intensely controversial act become part of his legacy. Clinton would also have little interest in kicking off a presidency with a pardon, particularly since a pardon is an admission of guilt.

There seems to be no real evidence of a prosecutable crime here, but it is worth considering whether a prophylactic pardon might not be in the best interests of the nation. It could restrict future fights over these matters to the political venue, where they probably belong.

J. Stephen Clark is a professor of law at Albany Law School in New York.