by Kitty Testa
If you are of the belief that Hillary Clinton is not guilty of any criminal wrongdoing regarding the handling of classified materials while Secretary of State, and you are convinced that the Clinton Foundation is a legitimate charity and not an international pay-to-play graft machine, then you might be surprised that anyone would even mention a pardon for Clinton. That would imply that Hillary Clinton has done something wrong, and you’re sure she hasn’t.
But a lot of people are quite certain of the opposite. In case you missed one of Donald Trump’s many rallies, the chants of “Lock her up!” resounded to the rafters. At the RNC convention in Cleveland this past summer, “Hillary for Prison” T-shirts were a best-seller. As I wrote earlier this month, information discovered in the John Podesta WikiLeaks dumps lends credibility to the idea that the Clinton Foundation was a front for the personal enrichment of the Clintons themselves.
Hillary has become the poster-child for powerful people who always seem to get away with it. For many, seeing her slapped with a criminal indictment, go through a lengthy trial and face a jury of her peers is a fantasy worth relishing. It would affirm a collective desire for blind justice. It would assure people that there aren’t one set of rules for the patricians and another for the plebeians.
Yet when thinking about what might actually occur if soon-to-be President Trump keeps his campaign promise of appointing a special prosecutor to make the case against Hillary, and if such an investigation led to an actual criminal indictment, the damage to our country and our culture could be irreparable. Here are five reasons why.
1. A Hillary trial would be a national circus that we can’t afford
The trial of Hillary Clinton would be something like a cross between the O.J. Simpson trial in 1995 and the Watergate hearings of 1973. God forbid such proceedings would be televised, but such transparency might be demanded, and the trial would become a months or years-long courtroom drama.
The trial would dominate press coverage and water cooler talk. It would seem like nothing else at all was happening. With the public’s attention squarely on the Hillary trial, an open door would be created for government to get busy making laws that nobody wants because nobody would be paying attention.
You may be aware that October 3, 1995 was the costliest day for productivity in the United States, with $480 million in lost output. But that was just the day that the O. J. Simpson verdict was read. Throughout the trial, people seemed to take every opportunity to gab about the developments in the trial, listen to talk radio, and turn on televisions at work. The true lost productivity was likely in the tens of billions of dollars for the trial that began in January and wrapped up with a verdict in October, which in turn led to months of reaction and analysis. In fact, 1995 had the lowest GDP growth of any year during the Bill Clinton administration at 2.55%, sandwiched between 4.11% in 1994 and 3.79% in 1996. With GDP growth hovering now at 1%, we simply can’t afford that kind of productivity loss.
2. The jury pool is tainted and judges are politicians
When the defendant has just run for President of the United States in the most contentious election in modern times, finding a pool unbiased jurors would be an impossibility. The voir dire process would likely eliminate anyone who cast a vote in the presidential election (with the possible exception of third-party voters). Okay, half of the eligible voters didn’t vote, so no problem, right? Not really. Even those who didn’t vote were likely exposed to news coverage about the controversies and ultimate indictment and possibly hundreds of politically charged-memes on social media.
So, putting that aside, let’s assume that somehow, the court is able to procure a jury of twelve people who have no opinion about Hillary Clinton and are unaware of the scandals that sparked the indictment against her. It’s the judge that directs the court proceedings, and judges can, by virtue of their role as referee, facilitate trial outcomes.
Judges, too, have party affiliations, either by having been appointed or having been elected. Every sustained objection would represent a political act. Every overruled objection would be seen as proof of a conspiracy. No judge in his or her right mind would want the case. It’s a surefire career-killer.
Even if you believe it would serve justice, finding an unbiased trier of fact is just too problematic.
3. Even if she’s guilty of criminal behavior, you probably are too
In his book Three Felonies a Day, Harvey Silvergate shows how a myriad of federal laws, which are technically complex and vague, create the possibility of criminal charges for even innocuous behavior. He estimates that the average American commits three felonies a day. He illustrates this through several examples of people who believed they were just going about their business, but ended up ensnared in criminal trials. It is the politically-charged DOJ that decides when to make it a federal case, and they can make a case over just about anything.
The failure of Loretta Lynch to indict Hillary Clinton over her private email server enraged many. James Comey made the recommendation not to indict, but she didn’t need his permission, either. Comey made the call that he needed criminal intent, while many other former prosecutors, such as Rudolph Giulliani and Jeanine Pirro, howled that the applicable statute did not require intent, and even if it did, they could prove it.
It’s important to realize that every decision to bring criminal charges is, by and large, discretionary, and any criminal proceedings against Hillary Clinton would be viewed entirely through the prism of politics, the same way that the failure to indict her is seen as political.
4. A Hillary trial would further politicize the Department of Justice
Americans aren’t just upset about Hillary Clinton “getting away with it.” They’re upset that Martha Stewart went to prison for insider trading while Jamie Dimon and his ilk crashed the U.S. economy and not one banking executive was charged with a crime. When banks commit crimes, they just get fined and buy their way out of legal trouble, with no criminal charges ever filed against the executives who are responsible. Those costs are passed on to the consumer, so there is no real deterrent against criminal behavior for Wall St. executives. The incestuous relationship between Wall St. and the government goes beyond just campaign contributions. Voters have noticed the revolving door between investment bankers and high-level government positions. Sometimes it looks like we have a government of Goldman Sachs, by Goldman Sachs and for Goldman Sachs.
Our new President should be focused on de-politicizing the Department of Justice, not using it as a means of political catharsis for the masses.
If Hillary Clinton were pardoned, Trump’s newly-announced Attorney General, Jeff Sessions, would have an opportunity to promote a culture of blind justice at the DOJ. This could be accomplished perhaps by creating a framework in which the decision to indict is less discretionary than it is today.
5. We need to move on and make peace
This election has revealed a painful chasm in our electorate. Democrats are scratching their heads wondering how they lost their appeal to the rural working class. Establishment Republicans are scratching theirs, wondering how they, too, dismissed that large segment of the electorate that rejected their preferred candidates. Bernie Sanders—a socialist—was a champion of the people to many voters. The one thing that most voters have in common is a rejection of the political establishment. Yes, we have different views of what our government should do, how it should behave, and what policies are best for our country, but there is a majority opinion that it has become corrupt and no longer represents us. We call that common ground, and if we make good use of it, we might actually be better for it.
Somewhere along the line we lost the ability to talk to one another. Instead of listening to each other we launched meme warfare, gobbled up fake news, and developed anxious dread about anyone who doesn’t see the world exactly as we do. We lost the ability to stand together where we agree and argue on principle where we don’t.
The election is over. Do we really want to live through another chapter?
As counter-intuitive as it may seem, the best foot forward begins with leaving the battle of 2016 behind. A presidential pardon for Hillary Clinton would be the closure we need, and if President Obama won’t do that for us, as a nation, I certainly hope that President Donald J. Trump will see that it is the right thing to do.