On June 3rd Rudy Giuliani, declared President Trump has the power to pardon himself for any crimes he might have committed. Giuliani’s comments echoed an argument advanced by Trump’s attorneys in a leaked letter to Special Counsel Mueller in which Trump’s attorneys argued Trump could terminate Mueller’s investigation by using his pardon power.” The President himself weighed in with tweet declaring that unnamed “numerous legal scholars” agree.
I really doubt “numerous legal scholars” agree with the President, and any that do are wrong.
The Pardon Power.
By way of background, the pardon power emanates from Article II, Section 2 of the United States Constitution. the Pardon Clause reads:
“[The President] shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The pardon power of the President is often described as “plenary,” meaning it has almost no limitations. In 1867 one of the few Supreme Court cases to address the pardon power certainly supported this plenary notion. In Ex parte Garland the Supreme Court described the the Presidential pardon power in sweeping terms saying it “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”
The Definition of Pardon.
Still, one self evident limitation is that a pardon has to fit the definition of what a pardon is. The Washington Post cites Constitutional scholar Brian Kalt as stating that a pardon, by its very nature, is something one person gives to another. In the words of Kalt a pardon is “inherently something that you get from someone else.”
Put simply there are pardoners, and pardonees, and never the twain shall meet. Kalt argues this limitation, while not explicitly stated in the Constitution is inherent to the meaning of the word “pardon” itself. However, Kalt admits no one really knows until a court addresses the question.
Interaction of The Pardon Clause With The Punishment Clause.
I believe the WaPo article, and Kalt’s analysis, ignore another important Constitutional provision that more directly addresses the question. First re-read the Pardon Clause above and note that it expressly does not apply “in cases of impeachment.” Thus, the President cannot pardon himself from impeachment.
However, the Constitutional provision specifying the punishment for impeachment, in Article I, Section 3 Clause 7, takes it step further than that. Take a look.
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
That last part is crucial. If impeached, and convicted by the Senate, the removed President is expressly subject to criminal prosecution. Period.
When the Pardon Clause and the Punishment Clause are read in concert, the pardon power does not apply when Presidential impeachment and conviction occurs. An impeached and convicted President can be criminally prosecuted. This Constitutional text is quite clear in precluding a Presidential pardon from applying to an impeached and Senate convicted President. The interaction of these clauses may be summarized as follows:
- Per the Pardon Clause the power to pardon does not apply in cases of impeachment.
- Per the Punishment Clause in cases of impeachment the President can be criminally prosecuted and punished after removal from office.
So let’s assume Trump pardons himself for obstruction of justice. Everyone agrees it does not preclude Congress from impeaching him for it anyway. If impeached by the House, and convicted by the Senate, the President is removed from office and the pardon has no effect because under the Punishment Clause the President “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” These words are a Constitutionally expressed limit on the power to pardon a President.
The Weird Case of Presidential Resignation.
Suppose, as impeachment proceedings are pending, Trump (while still President) pardons himself and then resigns. There is still Kalt’s argument he can’t do this because, by definition, a “pardon” must come from another. For sake of discussion let’s assume Kalt is wrong and move forward based only on my analysis of the interaction between the Pardon Clause and Punishment Clause.
President Nixon resigned after impeachment proceedings started in the House. The House Judiciary Committee had passed recommended articles of impeachment (that included obstruction of justice) for consideration by the full body. When Nixon resigned everyone figured it was moot and the impeachment effort stopped. I suggest it didn’t have to, and maybe it should not have.
The Punishment Clause is clear that there is at least one effect of impeachment beyond removal from office. That is the “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Without impeachment a resigned President , in theory, could still hold another office of trust in the United States.
As discussed above, once impeached, and convicted by the Senate, the resigned President’s pardon of himself is not effective because the Punishment Clause expressly states a person so convicted is subject to criminal prosecution.
A resigned President could still be impeached. There would be two good reasons to do so that would give relevance to impeaching a resigned President.
- The resigned President would now be barred from public office.
- The resigned President could now be criminally prosecuted and punished for his crimes even if pardoned.
What if Trump is pardoned by the incoming President (presumably Pence) as Nixon was pardoned by Ford? Surprisingly, the analysis does not change. Pence’s pardon would not be effective because the Punishment Clause specifically mandates that an impeached and convicted President can be prosecuted for his crimes. Had Congress only stuck to, and saw impeachment and conviction of Nixon through to the end, Ford’s pardon would not have precluded Nixon’s criminal prosecution and punishment.
I say that not because I desire such an outcome, but because that is what the plain text of the Constitution suggests.