Monday, November 30, 2020

A new impeachment would end Trump's ability to pardon himself

There are not many days left. We must impeach Trump.
Right now, you may be asking two questions: 
1. Impeach him for what
2. Why is this course of action a must?
There are many possible answers to question #1. Marcy Wheeler just outlined four:
Trump has dodged AT LEAST four different election crimes in his life:

Trump Org funding his POTUS bid in 2011
Hush payments
June 9 meeting
Extorting Ukraine
Trump was impeached for extorting Ukraine. I would argue that Trump's lies about the election are also impeachable. (An impeachable offense need not be criminal.) And it seems clear to me that the suspiciously-vanishing funds for both his inauguration and his re-election constitute grounds for impeachment. 
The interference in the Flynn case is impeachable. His many offenses against the emoluments clause are impeachable. His violations of the Hatch Act are impeachable. His interferences with congressional investigations were impeachable. His basic refusal to do his job is impeachable. (The guy doesn't even read the daily briefs he receives.) One could go on. And on.
Now let's look at question 2: Why impeach? Why not leave it up to Biden's AG to mount a criminal case against Trump?

Obviously, everyone fears that Trump will pardon himself. The president's ability to self-pardon has been debated for many years. It seems absurd to allow a potential criminal to function as his own judge, but Trump and his supporters genuinely seem to believe that he has the power to do so. We don't want the matter to be adjudicated by this Supreme Court. 

But the Constitution places one clear limit on the president's pardon power. From Article 2, Section 2, Clause 1 of the Constitution: 
"...he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
The President cannot pardon himself if he is facing impeachment, and he cannot pardon anyone else facing impeachment. In other words: If the House were to impeach Trump, he would be vulnerable even if he resigned just long enough to allow Pence to issue a Gerry Ford-style blanket pardon.

Of course, the wording of the Constitution is not as clear as we would like. It never is. Still, most people would interpret those words to mean that impeachment blocks a pardon for any federal crime. 
Can the president pardon an offense which gives rise to an impeachment inquiry? In other words, can he issue a self-pardon while congressional hearings are underway, and before impeachment is final? The Founders cannot have intended such a pardon to be permissible. If it were permissible, then any impeachment of a president would effectively become impossible.

Fun fact: Even after Trump leaves office, he is impeachable. A post-presidential impeachment could prevent Trump from running in 2024. 
Suppose Nancy Pelosi launched impeachment proceedings tomorrow: She could schedule six months' worth of hearings, which obviously would last well into the Biden presidency. Between now and January 20th, neither Trump nor Pence could issue a pardon for any offense that gave rise to those proceedings. The important thing is to get the process in motion ASAP. 
Will that happen? Probably not. Dems don't play that kind of hardball. Nancy has never been known for her boldness.
Here's an interesting thought: If Trump is impeached after he is out of office -- yes, it can be done -- would the impeachment nullify any pardon he might have previously bestowed upon himself? Would it nullify a pardon from Pence? 
I think so. At least, that's how I read the Constitution -- but I'm not sure if everyone else would share my interpretation.


Anonymous said...

I appreciate that “fun fact” on impeachment. I leaned something today. The wording does indeed seem to support the possibility of impeachment after office. Who knew?

Anonymous said...

I’m more worried that he will still be in the White House come January 21st, 2021!

Anonymous said...

There was talk of impeaching Bush after 2008. The idea was that it would strip him of his pension. Biden gives every indication that, as Obama did, he wants to look forward and not back at the crimes of his predecessor.

I am the only true anon.

Maria Perez said...

I’m more worried that he will still be in the White House..