At first blush, Donald Trump’s decision to swear off criminal investigations of Hillary Clinton didn’t look like a good idea.
At second blush, it looks like a terrible idea.
The decision, dribbled out in a TV report and then confirmed by aide Kellyanne Conway, is too momentous to come in bits and pieces and from anyone other than Trump directly. He made the pledge at a debate to appoint a special prosecutor, and it smacks of Washington-as-usual for the reversal to slither out the back door.
Yet instead of the president-elect personally explaining his big decision, the public got snippets of comments he made during an interview with The New York Times.
“I don’t want to hurt the Clintons, I really don’t,” the paper quoted him as saying. “She went through a lot and suffered greatly in many different ways.”
Asked whether he had ruled out a prosecution, he reportedly said, “It’s just not something that I feel very strongly about.”
I think I agree with Goodwin to this extent: for Trump to “dribble out” his decision, whether for or against a prosecution, is a bad idea, for it will be a decision with far-reaching effects. The indictment and trial of his recent adversary in the presidential contest would inevitably be characterized by numerous commentators as political, a bayoneting of the fallen enemy rather than an exercise of justice. To decline to indict would be characterized similarly: as the granting of a special, supra-legal status to a high member of the political elite. Either way, the tumult that will reverberate through our discourse will be great.
As for the justice of it, there can be no question: what Hillary Clinton did while Secretary of State, entrusted with mountains of highly classified information of supreme sensitivity, would land any ordinary American in prison. Moreover, she compounded the felony by lying about it, both publicly and during her FBI interviews. If she gets away with it, then it will forever be unjust for anyone else to be penalized for it. That would include anyone currently serving a sentence for the violation of the security laws.
But as Charles Krauthammer noted yesterday evening on Bret Baier’s Special Report, the president’s pardon power is an implicit recognition that sometimes, there are considerations of national well-being that in particular cases can transcend justice. A pardon granted to a convicted felon always contradicts a duly determined verdict of the justice system. Yet presidents pardon such felons frequently. They seldom do it out of a conviction that justice requires it.
For Trump to decide against prosecuting Hillary – a de facto preemptive pardon for what was plainly an illegal arrangement – would be a decision in favor of considerations he places above justice: presumably, the healing of the many wounds inflicted upon national unity by an unprecedentedly hard fought, vitriolic campaign. The deviation a preemptive pardon represents from standard procedure is what troubles me most. The Justice Department has a rigorous procedure for screening pardon applications. One of the requirements for endorsing and forwarding an application to the White House is that the applicant has been indicted, tried, and convicted, and has served his full sentence.
There have been deviations from this procedure. Perhaps the best known is Gerald Ford’s preemptive pardon of his predecessor, Richard Nixon, for any crimes he may have committed related to the Watergate scandal. More recently, Bill Clinton issued a preemptive pardon to fugitive financier Marc Rich. Not only had Rich not served any sentence; he had fled American jurisdiction upon being indicted. It’s been speculated that Clinton’s decision, like many others, was “influenced” by Rich’s buxom former wife Denise.
Presidents must bear the burden of such decisions alone. No one else in the federal government has any say in the matter. Neither does anyone outside the federal government. That’s part of why it’s imperative that presidents be men of sound, sober judgment and unimpeachable moral character. Let’s hope our president-elect, whose flamboyance and occasional vulgarity are notable elements of his public persona, possesses those traits.