Commentary: Obama should do the GOP a favor and pardon Hillary Clinton

The entire country — including many people who actually voted for Trump — is still trying to process Republican Donald Trump's stunning Election Day victory, but the fight over possible criminal charges for the vanquished Democratic nominee Hillary Clinton has already begun in earnest. Rudy Giuliani, considered an early favorite for attorney general in a Trump administration, has groused about continuing the investigation into Clinton's email server, and House Oversight Committee Chairman Rep. Jason Chaffetz (R-Utah) has likewise clearly signaled that the investigations are likely to continue.

President Barack Obama should do Republicans — and the country at large — a favor and pardon Clinton for any and all charges that might stem from her use of a private email server while she was secretary of state.

I don't mean to imply that Clinton did not break the law -- it's fairly clear that she did, as FBI Director James Comey laid out in the testimony he gave to Congress. But the reality is that ordinary Americans break the law all the time and aren't punished. As many conservative think tanks such as the Heritage Foundation have noted, our byzantine criminal system contains tens of thousands of statutes that bear possible criminal penalties for violating them, and there are hundreds of thousands of additional regulations that carry possible criminal penalties for violating them.

In a groundbreaking 2011 book, Harvey Silverglate explained — in terrifying fashion — how the average American unwittingly commits multiple potential felonies a day. The only reason all of us are not in jail is because law enforcement agencies and prosecutors use discretion (sometimes unwisely) and choose not to prosecute most of us. This problem presents its own challenge to the rule of law that is without question more serious than letting Clinton off the hook, but I digress. Virtually no American can say that everyone who breaks the law must be prosecuted for doing so, because we all break the law on a regular basis, whether we realize it or not.

Of course, there is a valid argument that Clinton either knew or should have known that what she was doing was illegal, and therefore, she should face some punishment. Given the razor-thin margin of Trump's victory, it seems likely that her decision ended up costing her the presidential election.

Loss of public office is actually a fairly common penalty accepted by prosecutors as part of plea deals involving public corruption. Exchanging peaceful resignation from office for a no-jail-time plea is a regular occurrence in America, and there no reason why it should not apply in this case, especially given the near-certainty that Clinton is done with public life and will never run for office again. After 24 years, America is done with Clintons being in public office. Sure, they'll travel the globe and earn a comfortable living giving speeches — and every president in recent history has enjoyed a similar sinecure, if they wanted it.

And that's an important thing for the country to achieve, on both sides of the aisle: Let's move past the Clintons and leave them in the dustbin of history where they belong. Their worldview, their corruption, and their cult of personality have been repudiated. Now that no one expects Hillary Clinton to be president someday, the demand to pay six figures to hear her (or worse, Chelsea) give bad, poorly delivered speeches must surely dry up. If the emails are the only criminal malfeasance Hillary is guilty of, she should be allowed to slink off into obscurity for the good of the country.

Sadly, it will likely take an Obama pardon for that to happen: Republicans have too much ingrained hatred for the Clintons to let this one go voluntarily. They have learned to chase Clinton scandals as an almost obsessive behavior — and in their defense, the well of Clinton scandals is more or less bottomless. But at this point, continuing pursuit of Clinton can only serve as a distraction from doing work that is actually needed — like repealing Obamacare and confirming a replacement for the late Supreme Court Justice Antonin Scalia.

Remember: a slight plurality of American voters voted for Hillary Clinton. Trump's most fervent supporters might want Trump's Justice Department to continue a criminal prosecution of Clinton, but the public as a whole is not going to tolerate the spectacle of resurrecting this investigation after Comey declared it dead two days before the election. It will be perceived — rightly or wrongly — as unseemly score settling and a waste of the public's time. The percentage of Americans who really want to see this email controversy dragged on into the early days of Trump's term must be infinitesimal. Even if that weren't true, it would ruin Trump's opportunity to start his presidency on a hopeful, unifying note.

It is regrettable that Clinton will likely never see prosecution for the events in Benghazi that took the lives of four Americans, but she is protected from criminal prosecution for these events due to the immunity granted public officials in the discretionary exercise of their duties. I believe the FBI should continue its investigation of pay-to-play with regard to the Clinton Foundation, and if any criminal activity is uncovered, then I might well support revisiting this question. But with respect to the private emails, which have been litigated endlessly in the public sphere, it will be good both for the political fortunes of the Republican Party and the mood of the country at large to let this issue go.

And since it seems unlikely that the incoming Trump administration and the Republicans in Congress will be able to do this on their own -- with Trump's supporters still chanting "lock her up" even after his victory -- Obama should do it for them.