Can't pardon himself or other insurrectionists

[struggle4progress]

By Corey Brettschneider and Jeffrey K. Tulis
Jan. 15, 2021 at 11:11 a.m. EST

... Even though the pardon power for federal crimes is virtually unlimited, Congress may still vote to impeach and remove a president for abusing the pardon power. Among legal scholars, this is not a controversial point. If a president issues terrible pardons, impeachment and removal is the mechanism to hold that president accountable.

But how does this accountability mechanism function if a president issues a pardon designed to disable the impeachment process itself — either by a president pardoning himself or by pardoning others to prevent them from providing vital information to Congress for his own impeachment? As we and other legal scholars have argued, the exception explicitly mentioned in the Constitution — that the president has the power of pardon “except in cases of impeachment”— should be interpreted to preclude pardoning himself or others whose acts were directly connected to his own impeachment.

... Recent news reports indicate that members of Congress also understand impeachment to strip the president of his pardon power. Rep. James E. Clyburn (D-S.C.), for instance, indicated that he is open to the view that the phrase gives the House the power to strip a president of the powers of pardoning in matters related to the insurrection ...

... Courts have a history of deferring to Congress on matters they deem inherently political. That deference is especially prominent in matters of impeachment. The Constitution grants the House the “sole power” of impeachment. And the Court ruled in Nixon v United States, a case about a federal judge named Walter Nixon, that the Senate had the power to set its own rules in impeachment trials. That is, as long as the rules are in accordance with the Constitution’s specific regulations, the courts would not micromanage the impeachment process. Given this precedent, the courts may see fit to give Congress leeway in this case ...

https://www.washingtonpost.com/politics/2021/01/13/no-trump-cant-pardon-himself-impeachment-would-strip-him-that-power/

[Karadeniz]

1. One would hope!

[Buckeye_Democrat]

2. Thank you!

That's a relief, if that's the correct interpretation.

Based on the wording, I would think so!

[Fiendish Thingy]

3. Flawed legal analysis, in the WaPo no less...

Last edited Sat Jan 16, 2021, 10:12 PM - Edit history (1)

The Impeachment exception is just that, it only applies to the actual impeachment itself, not any underlying or related crimes. This has been discussed and verified over and over again, by numerous constitutional scholars, from Laurence Tribe to Jamie Raskin.

Of course, any pardons issued to cover up Trump’s crimes could be challenged, but the outcome is far from certain.

[struggle4progress]

4. I find no need to adopt your view. The Constitution is intended to be a roadmap

for stable government by political compromise, not a suicide pact we must follow into dictatorship and slavery. The President attempted an insurrection to overthrow a lawful and Constitutional Congressional procedure, and the Constitution certainly provides us with the tools to resist this. It would be strange indeed, to believe the Executive might attempt the overthrow of our government and our freedoms, while simultaneously putting beyond any reach of law everyone who supported that plan by act

[regnaD kciN]

5. I'm pretty sure the courts won't interpret it that way...

...it seems clear that "except in cases of impeachment" doesn't mean an impeached president can't pardon anyone, but that a sitting president can't use the pardon power to remove the penalties arising from someone else who has been impeached and convicted. In other words, if Trump were impeached and convicted, removed from office, and prevented from seeking office again, President Pence could not then pardon him and lift the ban on him running in 2024.

[struggle4progress]

6. I find no hurry to adopt your view. The pardon authority is broad, but the intent was to allow

us to show mercy: it is broad enough, generally, to cover insurrection and even treason, but it was not intended to cover a coup attempt by the Executive

A reasonable interpretation of "except in cases of impeachment" is that the phrase also halts all Presidential pardon authority from the time the House impeaches until the end of the Senate trial

[Fiendish Thingy]

8. No serious legal scholar holds that position- it is wishful thinking on your part

Unsupported by any evidence, court rulings in particular.

The founders didn’t anticipate many of the constitutional dilemmas the Trump era has wrought.

[struggle4progress]

9. It is always delightful to discuss such issues with posters who believe we must march passively

into dictatorship and slavery; and who provide their opinions without any links

[Fiendish Thingy]

10. The two sources quoted in the WaPo piece are the only ones supporting your position

Out of dozens of sources I looked at. All other sources for “limits of presidential pardon power” support my position. Take your pick.

I couldn’t find any evidence that Ted Cruz’s father didnt kill JFK either, there’s just nothing out there to exonerate him...

[UTUSN]

7. K&R