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Here’s Why President Obama Probably Won’t Pardon Edward Snowden

Edward Snowden’s prospects for a presidential pardon suddenly appear remote. On Friday, a German newspaper on Friday quoted President Barack Obama as saying he is in no position to offer mercy to Snowden, the former NSA contractor who became a household name after he exposed details of U.S. surveillance operations.

The news is a major setback for Snowden and his many supporters in the tech community and in Hollywood, who have waged a vigorous campaign—anchored around a recent Oliver Stone biography—to win clemency for the 33-year-old, who has lived in exile in Moscow since late 2013.

Obama explained his position in a lengthy interview with Der Spiegel during his final overseas Presidential tour, expressing some sympathy for Snowden, but also suggested he can’t offer a pardon.

I can’t pardon somebody who hasn’t gone before a court and presented themselves, so that’s not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.

At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play.

Snowden’s supporters, however, suggest that Obama’s announcement is not so much that he can’t pardon Snowden, but that he won’t. Writing on the PardonSnowden website, the group’s director claims a President can pardon anyone whether or not they have been indicted.

And indeed, that position appears to be correct. As law professor Stephen Clark wrote on The Hill this month, the executive pardon has historically been applied not just to crimes but as a form of political reconciliation. Examples cited by Clark include President Ford’s pardon or Richard Nixon, President Carter’s grant of amnesty for draft dodgers and George Washington’s decision to pardon those who led the Whiskey Rebellion.

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Meanwhile, the Supreme Court has been unequivocal that the pardon power, described in the Constitution, does not depend on, as Obama suggests, someone first going before a court.

“It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment,” said the Court in an 1867 ruling, adding the power is unlimited except in cases of impeachment.

Obama, a former professor of Constitutional law, is likely fully aware of this so his position on Snowden appears to be more of a political one than a legal one.

As for Snowden, his future outside of Russia now looks bleak as President-elect Donald Trump, who has called him a “terrible traitor,” may seek to have him extradited.