The President’s pardon power, as laid out in Article 2, Section 2, reads:
Has there been any jurisprudence on just exactly what constitutes “in cases of impeachment”, or failing that, any informed legal speculation?
To be more specific, I’m envisioning a case where the Democrats take the House of Representatives, but the Republicans retain control of the House. If, as seems likely, both chambers vote on party lines, we could see the House passing articles of impeachment against Trump, but the Senate not removing him from office. Most commentators assume that this would make impeachment an empty gesture, but would it actually be? Is it possible that the President would then be unable to pardon himself and/or others for any of the specific charges laid out in the articles of impeachment, as it would then be “a case of impeachment”?
OP is a bit of a mess. I’m guessing you mean “Republicans retain control of the SENATE”, as that would seem the more likely outcome, and I don’t see how both Dems could take and Republicans simultaneously retain control of the House.
It’s probably worth mentioning here that even if Dems were to win control of the House and Senate, if members vote along party lines Trump won’t be removed from office because it requires 2/3 of the Senate to do that, not just a bare majority.
My semi-informed legal speculation is that no, an impeachment case being brought by the House and not being convicted by the Senate wouldn’t impact the President’s ability to pardon himself / others if subsequent criminal charges were pursed.
IIUC, it’s furthermore not an issue because the DoJ has a policy of not bringing criminal charges against a sitting president, and by the time he’s not a sitting president, he would no longer have the ability to pardon.
I think your question is: if the House impeaches a federal officer and the Senate fails to convict, would the President be prohibited from issuing a pardon for any federal crimes that may have been committed by the conduct that was alleged to support impeachment?
I don’t think there’s a definitive answer, but the answer seems to me to be almost certainly “no”.
Without doing detailed research, my reasoning is this: In ex parte Grossman (1925), the Court, quoting the Constitutional Convention, explained that “The power of pardoning vested in the Executive (which) his pardon shall not, however, be pleadable to an impeachment.” And that this was “exactly what the King’s pardon was at common law with the same limitation.”
(Grossman also expressly upheld the power of a president to issue a pardon for contempt of court and included this nugget: “The Senate can hold up all appointments, confirmation of which either the Constitution or a statute requires, and thus deprive the President of the necessary agents…” Two observations that have become more controversial recently).
Similarly, ex parte Wells (1855) explains that “the provision in our constitution, excepting cases of impeachment out of the power of the President to pardon, was evidently taken from [the English statute], and is an improvement upon the same.”
Grossman points toBlackstone’s Commentaries, who observes that “hat the king’s pardon cannot be pleaded to any fuch impeachment, fo as to impede the inquiry, and ftop the profecution of great and notorious offenders” but “after the impeachment has been folemnly heard and determined, it is not underftood that the king’s royal grace is farther reftrained or abridged.”
I would read Grossman (and Blackstone) to suggest that the purpose of the “impeachment” exception is to prevent the President from using the pardon power to hinder the impeachment proceeding (similar to the way a pardon could be used to terminal a criminal proceeding) out of concern for the separation of powers. But that the President would have the ability to issue a pardon for any crime that was also subject to impeachment… even if the impeachment was successful.
Whoops, yes, I meant to say that the Republicans retain the Senate, not the House.
And it looks like Falchion has answered pretty thoroughly. It’s not completely definitive until and unless someone tries it and it goes to trial, but that’s a strong argument on the precedents.
It doesn’t seem to me to make any difference if the president is impeached or not and if impeached, whether he is convicted or not. Obviously once the conviction vote is taken, he can’t pardon himself. But if he is impeached but the trial has not yet concluded, wouldn’t he be as free as any other time to pardon himself, assuming he indeed has that power?
I’ve always thought that provision simply meant that the President cannot use the pardon power to stop the impeachment proceeding itself. Remember too that judges and political appointees in the executive branch can be impeached (not just the President), so the exception is aimed not specifically at the President trying to stop his own impeachment but also that of his officers.
AIUI, the pardon power has never been held to expunge a crime, but simply to release the pardonee from criminal consequences, so the legislature would be free to consider the alleged criminal conduct for its own purposes in an impeachment proceeding.
Oh, they can certainly continue the impeachment itself: I don’t think anyone disputes that. But as it stands now, it sounds like the President could shoot someone on Fifth Avenue, immediately pardon himself, and never face any consequences for it beyond removal from office. Note also that pardons can be issued for unspecified acts, and before any charges are even levied, as demonstrated by Ford’s pardon of Nixon.
Wrong. Shooting someone on Fifth Avenue (under most circumstances) is a crime in the state of New York, and state crimes aren’t pardonable by the President. However, the Governor of New York might be able to manage this (I’m not familiar enough with NY’s pardon procedure / rules, but it’s typical for a governor to be able to pardon state crimes).
As I’ve pointed out, the potential exists with most state governors too. So what? They might not face criminal charges, but they can expect to be sued civilly for the harm they’ve wrought, and probably impeached or at least not re-elected, and most likely shunned by polite society. Those potential consequences (and a general sense of decency) seem to have been enough to keep most presidents and governors from engaging in shooting random people in their respective jurisdictions. What’s the issue?
For the vast majority of people, the laws are unnecessary, because the general sense of decency is enough. And I would hope that the proportion is even higher among those who’ve been elected to high executive office. But we do have a notable executive in this country who’s infamous for his lack of general decency, and so the issue becomes relevant.
Not specifically, because he probably doesn’t have a clue how to handle a gun. But he’s actually said that he’s going to pardon his way out of his other crimes.
