Will Obama Pardon Hillary? Would she accept it?

Will Obama Pardon Hillary, and if he does, will she accept?

What looks like one question—will the president pardon Mrs. Clinton?—turns out, on analysis, to be two. The first question is: Would Mrs. Clinton wish to receive a pardon?

That question seems to be a proverbial no-brainer. Surely, any person who had been in federal government would be eager to receive a presidential pardon, because it eliminates even the possibility of federal prosecution. That looks like all upside and no downside.

But there is a downside, and it isn’t trivial. A pardon must be accepted by the person who is pardoned if it is to effectively stymie any prosecution.

Furthermore, there is solid legal precedent that acceptance of a pardon is equivalent to confession of guilt. A U.S. Supreme Court case from 1915 called Burdick v. U.S. establishes that principle; it has never been overturned.

If acceptance of a pardon by Mrs. Clinton would amount to confession of guilt, would she nevertheless accept it? A multitude of factors would go into her decision.

She, together with her attorneys, would have to decide how likely it is that the Trump administration would prosecute her, and, if they did decide to prosecute, how likely it is they would be able to prove she had committed crimes.

Since being elected, Mr. Trump has been remarkably warm towards the person he used to call “crooked Hillary.” But how confident could Mrs. Clinton be that the Justice Department, under a Trump administration, would not prosecute?

Prosecutorial decisions are supposed to be independent of political considerations, so Mr. Trump’s recent friendliness should not be controlling once the new Attorney General is in office.

If Mrs. Clinton believes prosecutors might be able to make a strong case against her, the value to her of a pardon increases. If she is confident that any case against her would be weak or even futile, the pardon has less value.

If Mrs. Clinton decides that, everything considered, she would prefer to receive a pardon, she would no doubt be able to convey that message to Pres. Obama, and then the ball would be in his court. Thus, 

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