The 2016 presidential election cycle is unlike any the country has ever seen. Now, just 4 days before votes are to be cast, there are new and dire warnings of a possible constitutional crisis surrounding the outcome of the election.
And it isn’t just one scenario that is keeping constitutional scholars awake at night. There are multiple scenarios involving both candidates that have to be thought through on the outside chance that we as a nation have to face them once a candidate is in office.
The first, and least likely to sway the outcome, would be what some call “faithless electors.” Faithless electors are representatives sent to the electoral college bound by the popular vote in their state to vote for one candidate. They’re not legally bound to anyone, actually, and if they chose, these electors can vote how they wish. It has happened more than 150 times in the past, though none of the faithless electors have ever held enough sway to change the outcome of an election.
The next is far more likely, and it concerns pardons. Hillary Clinton is being accused of numerous crimes. A conviction for any one of them would be devastating to her candidacy. Yet there are only four days before the election, which means there will be no conviction.
Once in office, President Clinton could simply pardon herself and all of those around her. Case closed.
What would seem far more likely is that she won’t have to. Obama will begin his end-of-term pardons soon enough, and Hillary and her team could top the list.
The last major scenario, and one that is equally vexing, is the question of prosecution. Pardoning yourself is, implicitly, an admission of guilt, and Hillary isn’t likely to make such an admission. So let’s assume she gets elected, and takes office. Who then would prosecute her for her past misdeeds?
Congress has the power to impeach, but that’s more of a ceremonial dethroning. And it is unclear if one can be impeached for crimes committed before one takes office.
Professor of Public Interest Law at George Washington University Law School John Banzhaf has written about these scenarios. Whispeaking with Breitbart News Friday, Banzhaf said, “Some could argue that she can’t pardon herself. We don’t know the answer and perhaps more disturbingly, it may be impossible for that case ever to get into court.”
“Nobody may have what we call legal standing. There are other doctrines that courts could invoke. You don’t have kind of a neutral or third party or third branch referee to decide. She says, ‘I pardon myself, and that’s it, and it’s over.’ Presumably, the other party would say, ‘No, it’s not,’ and then what happens from there?”
This, for those who are really enjoying the chaos of this election, is the real question.