When the creators of our federal constitution were trying to cobble together a compact that would allow thirteen sovereign states, that were only loosely connected under the articles of confederation, one of their concerns was preventing the President from becoming an autocrat. Yet, there was an understanding that without certain plenary powers, this unitary executive could not protect the new nation. One of the powers bestowed was that of the pardon, which while being absolute, was circumscribed by the limited functions of the federal government at the time of inception.

The Heritage Foundation has an interesting discussion of this clause in Article Two of the Constitution: "….. shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment” There are no conditions or qualifications in these sparse powerful words. There was a supreme court case of 1915 Burdoc v. U.S. that stated that a pardon must be accepted, which implies an admission of guilt. While this may still be the common perception, it is no longer valid, and never was meant to be, as this section from the Heritage Foundation article describes:

As Alexander Hamilton argued in The Federalist No. 74, "in seasons of insurrection or rebellion there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall." Presidents have sought to use the pardon power to overcome or mitigate the effects of major crises that afflicted the polity. President George Washington granted an amnesty to those who participated in the Whiskey Rebellion; Presidents Abraham Lincoln and Andrew Johnson issued amnesties to those involved with the Confederates during the Civil War; and Presidents Gerald R. Ford and James Earl Carter granted amnesties to Vietnam-era draft evaders.

A prompt pardon of Secretary Clinton would be under the category of “mitigating the effects of major crises” from Alexander Hamilton Federalist paper, as was the decision to pardon Richard Nixon by President Ford. The legitimacy of this pardon was challenged by the House of Representatives, with this full transcript (aprox 30 pages) of his explanation setting an example for for the current question, specifically whether granting and accepting a pardon requires acknowledging guilt, and if so must it be guilt of a criminal act rather than guilt of lessor acts such as negligence, that would not meet such criteria.

Here is one key element from Ford’s testimony:

Questions eight and nine of H. Res. 1367 deal with the circumstances of any statement requested or received from Mr. Nixon. I asked for no confession or statement of guilt, only a statement in acceptance of the pardon when it was granted. No language was suggested or requested by anyone acting for me to my knowledge. My Counsel advised me that he had told the attorney for Mr. Nixon that he believed the statement should be one expressing contrition, and in this respect, I was told Mr. Miller concurred. Before I announced the pardon, I saw a preliminary draft of a proposed statement from Mr. Nixon, but I did not regard the language of the statement, as subsequently issued, to be subject to approval by me or my representatives

What would be a more appropriate use of Hamilton’s words of ”pardon power to overcome or mitigate the effects of major crises that afflicted the polity” than allowing the threat of criminal investigation to distort the most sacred right of a secular democracy, the election of the Head of State and Government.

Hillary Clinton has repeatedly acknowledged “contrition” for her lack of diligence in dealing with her emails, including those that were set up outside of official channels, which is more than President Ford required of Nixon to grant his pardon. The determination of whether or not this constituted a federal crime is not required to be known, or ever adjudicated based on the Nixon precedent. Ford did not pardon the individual, but granted the pardon for one of the fundamental reasons that this authority was granted by our country’s founders — the good of the country.

One of the candidates for President is facing the specter of criminal prosecution for a series of actions that have been investigated extensively, and it is only the choice of verbiage by the media that is making it appear that there is evidence that could show that her acknowledged derelictions now cross the line into criminal activity .

And even if this were the case, the essence of democracy is that the people choose their leader. One candidate doesn’t understand this as he says the worlds, “She shouldn’t even be allowed to be a candidate.” as if there where an authority that makes such a decision based on other then the two constitutional criteria of age and native birth.

The President of the United States derives his/her awesome power directly from the people. This position is so vital that he/she may only be removed by a supermajority of the other elected officials of both bodies of the legislature. A president may not be removed by the judiciary. Given this near absolute hold on power during the term, the choice of who will holds this position may not be determined by any single individual especially one who has the aura of objective investigation of criminality.

The Presidents authority to provide a cloak of protection for any individual was never bestowed lightly, but is meant to be used for the good of the country. And just as his use was expanded by President Ford, this could be the time for such an expansion by President Obama.