For the sake of the hypothetical, let’s say that Mueller finds compelling evidence of corruption and/or election law violations at the highest levels of the Trump campaign. Furthermore, he believe he can put together a solid case that Trump himself obstructed justice.
If he takes the recommendations to Deputy AG Rosenstein to bring charges via the normal procedure, he runs the risk that Trump issues preemptive pardons. Congress could still begin impeachment proceedings at that point (let’s also assume for this hypothetical that Trump can’t pardon himself, even though I understand that’s unsettled law), but at that point the damage is done.
Could Mueller go directly to congress with his evidence and keep it all secret from the executive branch? Is there any way to put a congressional freeze on Trump’s ability to pardon?
Supposedly this is why Mueller brought Michael Dreeben onto his team, Dreeben is an expert at arguing cases before the Supreme Court. I do not understand the legal situation but I believe a case has to be made in front of then Supreme Court to justify charging a sitting president, hence Dreeben.
Here’s another question: The pardon power doesn’t apply “in cases of impeachment”. At just what stage of the process does something become a “case of impeachment”? When the House is voting on a bill of impeachment? When they pass that bill? When the Senate hears the case? And just how far does a “case of impeachment” extend? If someone is impeached (or being impeached) for obstruction of justice, and also being pursued through the conventional judicial channels for obstruction of justice for the same acts, is it possible for that person to be pardoned in the conventional channels for those acts, or is the whole thing a “case of impeachment”?
I said as much in the OP, but impeachment doesn’t solve the problem of all of Trump’s family members and cronies potentially getting off scot-free. I think that would stick in a lot of craws.
Impeachment by the House and conviction by the Senate is pretty much the only way to “discipline” a sitting President, but if you read the Constitution, it’s pretty clear that Congress can pretty much impeach/convict for any reason, and there’s nothing the President can do to stop the process.
I’d gladly let the family members and cronies escape in exchange for ending this nightmare of a presidency. I’d rather they get prosecuted, sure, but it’s significantly lower on my list of priorities. Wrong doers escaping “justice” doesn’t bug me as much as it bugs most people. On the other hand, getting this SOB out of the White House asap would be sweet.
It becomes a case of impeachment as soon as the House begins to consider a bill of impeachment. The House impeaches; the Senate decides whether or not to remove from office.
The power to impeach and remove from office extends no further than to remove from office, and disqualification from holding future public office.
The President can pardon only for federal crimes, and may not (AFAICT) pardon for “high crimes and misdemeanors” and thereby prevent himself from being impeached and/or removed from office.
Even after they are pardoned, they can be called as witnesses. And my understanding is that they can no longer plead the 5th; if you’re already pardoned, you can’t incriminate yourself through testimony.
I did some (pretty superficial) research on the impeachment process to teach a high school civics lesson on the topic. From what I read, the phrase “high crimes and misdemeanors” was used in Britain before the Constitution was written, so it’s a loosely-defined legal term of art. In other words, it doesn’t matter much whether you parse “high” as modifying just “crimes” or as applying to “misdemeanors,” too. (Although I’m pretty sure it’s “high crimes” and “misdemeanors” as two separate categories.)
Some nuances:
these HC&Ms are traditionally understood to be job-related – that is, impeachment punishes an officeholder for misbehavior related to the duties of office
they need not be illegal acts – first federal impeachment and removal was of a judge for “chronic intoxication” in like 1804 (according to Wikipedia)
As Shodan notes, impeachment is NOT a criminal proceeding and can’t be punished with criminal sanctions (fines, imprisonment, beheading). Makes sense that the pardon power doesn’t apply for that reason.
Of course, my opinion, or that of the nation’s best constitutional scholars, is worth next to nothing if we can’t convince the House, Senate, and possibly courts to share our opinions.
If you’re wondering whether impeachment proceedings being underway in some way blocks a criminal pardon, I don’t think you should get your hopes up. Impeachment is a political/governmental proceeding separate from criminal proceedings. (AIUI, IANAL.) So yes, a pardon would preclude criminal proceedings – it just can’t protect a person from impeachment.
(Since we’re talking about Trump potentially pardoning himself, that makes things complicated, because no one’s really sure whether such a pardon would stand. But if we were talking about impeaching a VP, judge, or cabinet member, the situation is pretty clear: they could be protected from criminal proceedings by a pardon, but not from impeachment and removal from office.)
The “high” in “high crimes” is not so much that the the crimes are “high”, but that the person is a “high level” in the government. You and I can’t commit a “high crime”, but a president or governor can.