illary Clinton will not be getting a pardon from President Obama.
And if Obama is to be kept to his word, neither will former CIA Director David Petraeus, convicted Israeli spy Jonathan Pollard, intelligence contractor Edward Snowden or Pvt. Chelsea Manning, all of whom were accused or convicted of mishandling classified information.
The reason is simple: None of them have applied to the Office of the Pardon Attorney for executive clemency.
Obama specifically addressed “last-minute” presidential pardons at a news conference in August. “The process that I put in place is not going to vary depending on how close I get to the election,” he said in response to a question from USA TODAY. “So it's going to be reviewed by the pardon attorney, it will be reviewed by my White House counsel, and I'm going to, as best as I can, make these decisions based on the merits, as opposed to political considerations.”
White House Press Secretary Josh Earnest confirmed last week that Obama hasn’t changed that philosophy after the election. “I wouldn’t speculate at this point about what impact that may have on hypothetical pardon requests that he receives. I'll just say that the guidance that President Obama shared with you is still operative.”
Speculation about a Clinton pardon, already rampant before the election, only intensified after the election of rival Donald Trump as president. At one debate, Trump told Clinton it would be bad for her if he were elected "because you'd be in jail." Trump aides have refused to rule out a prosecution after Inauguration Day.
That posture could increase pressure on Obama to pardon Clinton, but there's no indication that she's sought a pardon — or that she would accept one if granted. While some pardons have historically been granted on the grounds of innocence, they're often perceived as a sign of guilt.
It's not necessary for someone to be charged or convicted of a crime to receive pardon. President Gerald Ford pardoned his predecessor, Richard Nixon, in 1974, although Nixon had not been charged or convicted of a crime. Nixon resigned in August 1974 after the House Judiciary Committee approved two articles of impeachment against him.
“Granting a pardon to Hillary Clinton would be one of the most controversial and misguided clemency decisions that Obama could make,” said Jeffrey Crouch, a professor at American University and author of The Presidential Pardon Power. “Pardoning a former member of his administration to spare her from the hassle and embarrassment of judicial prosecution would be against what the framers of the constitution had in mind for the clemency power. It would also violate his pledge not to grant any politically motivated pardons in his last days in office.”
Crouch said a Clinton pardon would continue a string of late-term clemency abuses by our last three presidents: George H.W. Bush pardoned several figures in the Iran-Contra affair. Bill Clinton pardoned Democratic donors. And George W. Bush commuted the prison sentence of Lewis “Scooter” Libby, Vice President Cheney’s former chief of staff, who was convicted for lying to the FBI in the investigation of the outing of an undercover CIA operative.
“I think he would prefer not to be remembered as the fourth president in a row who abused the clemency power to protect his political associates or supporters,” Crouch said.
There are also practical considerations: The Office of the Pardon Attorney is putting most of its resources into the clemency initiative, Obama's strategy to cut short long mandatory minimum sentences imposed during the "war on drugs."
And there's just not enough time for a new pardon application to get to Obama's desk without taking shortcuts. Pardon applications can often take more than two or three years to process, requiring an FBI background check, character references, and even employment and credit checks.
The White House could speed up the process by putting pressure on the pardon attorney and the FBI. But FBI Director James Comey has already expressed public misgivings about Clinton’s use of a private email server to send and receive classified information, although he decided criminal charges were not warranted.
Still, the White House has expedited pardon applications in the past. Former pardon attorney Margaret Love said the White House could put pressure on the Justice Department to speed up the process, as President Bill Clinton did in 1995 with a friend of his mother who was convicted of illegal gambling in 1972.
“I did Jack Pakis, who Clinton wanted to do, in six days,” she said. “Quite apart from that, there’s absolutely nothing required in particular for a pardon application.”
But Love said those hurry-up pardons were “irregular” and would violate Obama’s pledge to follow the normal process.
Far more likely are what she called “little people cases" — people who aren't household names but can still carry historic resonance.
Among them: Sala Udin, a former Pittsburgh City Council member and civil rights activist convicted of transporting firearms across state lines in 1970. He was returning home from registering African-Americans to vote in Mississippi when police in Kentucky pulled him over for speeding and found an unloaded rifle. Udin explained that he brought the weapon in case he was "trapped on some lonely, dark road in the South and confronted by Klansmen who threatened to kill me."
His pardon petition has been pending with the Office of Pardon Attorney since 2008.
Those aren't always the kinds of cases that are subject to newspaper headlines and online petition campaigns, which seek to do an end run around the Justice Department and put political pressure directly on the White House.
That's the strategy being employed by Edward Snowden, the former National Security Agency contractor now exiled in Russia to avoid charges that he violated the Espionage Act. His lawyer, Ben Wizner of the American Civil Liberties Union, has acknowledged that his client doesn't meet the Justice Department guidelines to be eligible for a pardon.
"The constitution didn’t assign this power to the Department of Justice. It assigned it to the president," Wizner said in August. "I would hope that President Obama would like to resolve this situation on his watch."
Other notable cases that have been waging public campaigns for clemency — but who don't have petitions pending — include former Alabama governor Don Siegelman (corruption), "American Taliban" John Walker Lindh (terrorism), and lifestyle guru Martha Stewart (insider trading).
There are still some prominent names that could — at least theoretically — receive clemency. The Office of the Pardon Attorney confirmed that it has pending applications from former Detroit Mayor Kwame Kilpatrick (racketeering, extortion, bribery and fraud), Native American activist Leonard Peltier (murder), former WorldCom CEO Bernard Ebbers (fraud and conspiracy) and singer Ron Isley (tax evasion).
And then there’s the exceptional case of Jack Johnson, the African-American boxing champion convicted in 1912 of transporting a woman across state lines for immoral purposes. Several congressional resolutions have urged Obama to grant a pardon to on grounds that the trial was racially motivated.
Until recently, the Justice Department wouldn’t even accept a posthumous pardon application — simply returning it to the applicant. "It is the department’s position that the limited resources which are available to process requests for president clemency – now being submitted in record numbers – are best dedicated to requests submitted by persons who can truly benefit from a grant of the request,” then-Pardon Attorney Ron Rogers wrote to Congress in 2009.
But Acting Pardon Attorney Robert Zausmer confirmed that a petition had been submitted on Johnson’s behalf, suggesting an open case. It’s now up to Obama whether to make an exception and grant a posthumous pardon.