Bill Clinton was approaching the midway point of his second term when scandal consumed his presidency. If elected Tuesday, his wife Hillary may not have to wait that long.
The late-breaking developments in the FBI investigation of Hillary Clinton’s use of a private email server while secretary of state have not only made the presidential race much closer. They have virtually guaranteed that even if Clinton wins, she will be hobbled by probes and controversy from the moment she takes office.
This is true even with FBI Director James Comey saying Sunday he stands by his recommendation that Clinton face no charges.
Donald Trump has made this a big part of his closing argument. “Here we go again with Clinton,” he said while campaigning in Jacksonville last week. “You remember the impeachment and the problems. She is likely to be under investigation for many, many years. Also likely to conclude in a criminal trial. This is not what we need in this country, folks.”
“We need somebody that is going to go to work to bring our jobs back, to take care of our military, to strengthen up our borders,” Trump continued. “This is not what we need. It is going to be a mess and they say it. They say it. This is going to be a mess for many years to come before they figure it all out. We don’t need that.”
A new Trump campaign ad reinforces this point. “Decades of lies, cover-ups and scandal have finally caught up with Hillary Clinton,” the narrator intones. “Hillary Clinton is under FBI investigation again after her emails were found on pervert Anthony Weiner’s laptop. Think about that. America’s most sensitive secrets, unlawfully sent, received and exposed by Hillary Clinton, her staff and Anthony Weiner.”
“Hillary cannot lead a nation while crippled by a criminal investigation,” the narrator concludes.
The constant conflicts over scandals, even when the investigations did not lead to charges, produced “Clinton fatigue” at the end of Bill Clinton’s time in office.
In addition to the Weiner investigation uncovering more emails that are potentially relevant to the Hillary Clinton investigation, triggering Comey’s initial letter to Congress, there was a bombshell report claiming a much more serious investigation of Clinton Foundation “pay-to-play” allegations than previously assumed.
There was considerable pushback against the report and Fox News’ Brett Baier has walked back that an indictment was likely.
Nevertheless, congressional hearings on everything from the decision not to pursue charges against Clinton to Attorney General Loretta Lynch’s meeting on the tarmac with Bill Clinton to the substance of the email and foundation issues can be expected to intensify.
It is familiar territory for the Clintons, as the Whitewater story broke during the 1992 campaign and plagued them their whole time in the White House. But Bill Clinton didn’t face a Whitewater special prosecutor until 1994 and Republicans didn’t control Congress until the following year, leaving much of the fallout to talk radio until then.
A second President Clinton would likely face a Republican Congress right out of the gate. In fact, the tightening in the polls that has happened since the FBI renewed its investigation makes it more likely Republicans will maintain control of the House and perhaps even the Senate. The pressure for a special prosecutor will be great.
Even if the Democrats do retake one or both houses of Congress, it is possible there will be congressional investigations from the opposite direction — hearings looking into why Comey spoke out publicly yet cryptically so close to the election, the disgruntled FBI agents’ leaks to conservative media and whether there are any Hatch Act implications.
Outgoing Senate Democratic Leader Harry Reid has sent Comey a letter suggesting Comey violated the Hatch Act. His successor, Sen. Chuck Schumer, has said he has lost confidence in Comey’s leadership.
While these hearings would be more favorable to Clinton, even they will keep her scandals in the headlines and provide Republicans opportunities to add to her bad press. At the least, the Anthony Weiner investigation will keep producing uncomfortable coverage of Clinton and her top aide Huma Abedin, Weiner’s estranged wife.
Clinton would still be eligible for the presidency in the extremely unlikely event she was indicted, even though Trump has repeatedly said “she should not be allowed to run.” The only potential obstacle would be if the — again, always highly unlikely and now even more remote given Comey’s letter Sunday — indictment occurred before the Electoral College met.
In theory, there could be mass defections by electors pledged to Clinton in favor of some other candidate. Many states don’t have laws preventing faithless electors from voting against their voters’ wishes and the constitutionality of the laws that do exist have never been tested.
There is also the possibility that a winning presidential candidate who was indicted, convicted and jailed before taking office would be deemed incapacitated, allowing the vice president-elect to take office under Section 3 of the 20th Amendment of the Constitution. But the chances of any of that happening in the current situation are roughly zero.
It is a matter of some legal dispute whether Clinton could be indicted while in office as president. Many legal experts believe the answer is no. Article I, Section 3 of the Constitution says, “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Others argue that presidents can be indicted, especially once impeached and removed from office. “Should there be evidence of criminal acts, and should that give rise to a successful impeachment and removal from office, the Founders did not wish to shield the person impeached from further legal proceedings under any notion of double jeopardy,” wrote Gary L. McDowell in the Wall Street Journal before special prosecutor Kenneth Starr released his report on Bill Clinton.
The Supreme Court declined to rule on the question when it came up during the Watergate scandal. The Justice Department issued memoranda arguing against the prosecution of sitting presidents in 1973 and 2000 — during the Nixon and Clinton administrations. It is theoretically possible Clinton could pardon herself as president, although that is both unsettled and unprecedented.
In any event, there are strong political norms against indicting the president. At a bare minimum, Clinton would be afforded the benefit of every doubt when it comes to her intentions, the key to any indictment.
If any serious wrongdoing was exposed after Clinton took office, at least some congressional Republicans would push for her impeachment. Rep. Mo Brooks, R-Ala., has already said there “probably ought to be” impeachment hearings for Clinton. Rep. Michael McCaul, R-Texas, and Sen. Ron Johnson, R-Wis., have also publicly floated the possibility.
Yet there are questions about whether a president can be impeached for offenses committed before taking office. The House Judiciary Committee thought otherwise in 1873. While considering the impeachment of Vice President Schuyler Colfax, the committee concluded, “should only be applied to high crimes and misdemeanors committed while in office and which alone affect the officer in discharge of his duties as such, whatever may have been their effect upon him as a man, for impeachment touches the office only and qualifications for the office, and not the man himself.”
Teapot Dome, Watergate and Iran-Contra all concerned actions undertaken by the president while in office. While Bill Clinton’s impeachment arose out of an investigation into things he did before he was president, the articles of impeachment all focused on things he did in office. The two that were approved by the House covered events that took place in the late 1990s.
Republican leaders could conclude impeachment is too politically risky. The GOP is expected to do well in the 2018 midterm elections, especially with a Democratic president, but the party was hurt by Bill Clinton’s impeachment saga in 1998. Senate Republican Leader Mitch McConnell was in office at the time, House Speaker Paul Ryan was elected to Congress that year.
Nevertheless, they can expect pressure for impeachment among some conservative lawmakers.
These are uncharted waters. To make matters even more interesting, some of these legal questions could be decided by a Supreme Court that remains deadlocked because Republicans have blocked Clinton’s nominees — or that is controlled by the liberal bloc because of a Clinton appointment.
So if you are expecting things to calm down after the election, perhaps the real fireworks are only beginning.
