Both the plain meaning of the Constitution’s text and the
historical evidence show that once a president has been impeached, he or she
loses the power to pardon anyone for criminal offenses connected to the
articles of impeachment — and that even after the Senate’s failure to convict
the president, he or she does not regain this power.
Under Article II, Section II of the Constitution, the
president is given the “power to grant reprieves and pardons for offences
against the United States, except in cases of impeachment.” Pardons are
supposed to be used as acts of mercy. The framers thought of the pardon power
as a “benign prerogative”—prerogative because it was mostly unchecked by courts
or Congress, but benign because presidents would use it for the public good.
But the framers knew not to place blind trust in the
president to wield the power justly. That’s why they explicitly forbade a
president from exercising the pardon power in “cases of impeachment.” The
clause prevents the worst abuse of the pardon power: a president’s protecting
cronies who have been convicted of crimes related to the president’s own
wrongdoing.
This danger of a president using the pardon power to
excuse his or her own crimes was discussed by George Mason at the 1788 Virginia
ratifying convention, where delegates debated whether to adopt the document
that had been drafted in Philadelphia. Mason thought the danger of the pardon
was so great that it was among the reasons he argued the Constitution should
not be ratified, and why he refused to sign the document. “The President ought
not to have the power of pardoning, because he may frequently pardon crimes
which were advised by himself. It may happen, at some future day, that he will
establish a monarchy, and destroy the republic. If he has the power of granting
pardons before indictment, or conviction, may he not stop inquiry and prevent
detection?”
Defenders of the Constitution knew they needed a
robust response to the danger of a president’s abusing the pardon to protect
co-conspirators. James Madison, a primary author of the Constitution, argued in
reply to Mason that such pardons were barred by the Constitution as already
written. He pointed to the protection already in the Constitution: No president
could pardon co-conspirators. “If the President be connected, in any suspicious
manner, with any person, and there be grounds to believe he will shelter
himself; the House of Representatives can impeach him,” Madison responded to
Mason. “[T]hey can remove him if found guilty; they can suspend him when
suspected, and the power will devolve on the vice-president.”
Here Madison provides evidence that the intent of the
framers was to limit the pardon power from being extended to a president who
wanted to use it to pardon co-conspirators. His remarks are a guide to how we
should interpret the limit explicitly written into the Constitution when it
comes to cases of impeachment: It strips a president of the power to use a
pardon to “shelter” anyone “connected in any suspicious manner” way with the
president’s alleged high crimes and misdemeanors.
The limit on pardons for co-conspirators wouldn’t
affect many of the president’s pardons. Pardoning convicted criminals like
former Illinois Governor Rod Blagojevich might be ill-advised, but it is still
permitted. By contrast, pardoning longtime adviser Roger Stone would not be
permitted, as his crimes relate directly to the impeachment case.
Stone was convicted on seven criminal counts centered
around allegations that he had lied to Congress during his September 2017
testimony to the House Intelligence Committee as part of the Mueller
investigation. The investigation of Stone relates to the charges that the
president abused power by soliciting foreign intervention into our election and
that he obstructed justice in trying to hide that “high crime and misdemeanor.”
The best evidence that Stone is tied to those charges is his own self-described
role as a protector of the president. “I will never roll on [Trump],” Stone declared in one of many statements. That makes
him exactly the type of person Madison had envisioned while limiting the
president’s pardon power.
It is true that the Stone investigation concerned
Russian involvement in the election and that the House charges focused on the
more recent Ukraine accusation. But the articles of impeachment focused on the
accusation of “abuse of power,” and it is that general high crime at play in
Ukraine and elsewhere that links the impeachment and Stone.
Inevitably, some will argue that an impeached
president should regain the power to grant clemency to his alleged
co-conspirators in cases of acquittal by the Senate. That ignores not only the
framers’ clear intent, but also the plain text of the Constitution.
The framers deliberately used the phrase “cases of
impeachment,” not “conviction.” One reason why is simple: A president convicted
by the Senate would be removed from office, and thus unable to pardon anyone.
As such, there would be no reason for the Constitution to curb a convicted
president’s pardon power. No exception to the pardon power needs to be granted,
because no such power exists.
Moreover, the framers provided no explicit avenue for
him to regain the power they took away after a House impeachment vote. Time
limits are common in the Constitution—think of the president’s four-year
term—and the absence of one connected to the pardon power suggests that the
power is not in fact lost for a limited duration. In the absence of an explicit
reinstatement of pardon power in the text, the strong presumption has to be
that it is still lost.
Nothing in the framers’ comments or the text itself
speaks of the Senate vote to not convict as restoring the pardon power. The
Senate trial is not subject to the rules of criminal law; presidents are not
accused criminals who get all of their rights back upon a not guilty verdict.
Moreover, the decision to impeach is left to the House “alone,” according to
the Constitution’s text. Generally, the Senate and House have distinct powers
in matters like taxation and ratifying treaties. The powers of each body in
impeachment are also distinct. The percentage of votes required for impeachment
in the House and conviction in the Senate are distinct. So are the penalties.
Only the House can decide whether to impeach the president, and only the Senate
can decide upon removal and disqualification from office.
The argument for a constitutional limit on the power
to pardon co-conspirators is strengthened by the widely acknowledged implicit
limit on “self-pardons.” The Department of Justice’s Office of Legal Counsel,
prompted by the possibility that President Richard Nixon would try to grant
clemency to himself for his role in Watergate, argued that a president could
not pardon himself. According to that office, no person should be a “judge in
his own case”; therefore, no president could self-pardon. Although not
technically a self-pardon, pardons for co-conspirators are similarly aimed at
self-protection, so should also be barred.
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