Impeachment Trumps Pardons

After the assault on the Capitol building which was incited by President Trump’s rhetoric there are people in both parties calling either for him to be removed from office by the 25th Amendment or to be impeached a second time. So far it would appear that while a few members of the president’s cabinet have floated the idea of his being removed using the 25th Amendment there seems to be little chance that Vice President Mike Pence would go along. But even if you could get a majority of the cabinet and the VP to agree that the president was unable to discharge the powers and duties of his office the process doesn’t end there. The declaration of the president’s inability would have to be submitted to the President pro tem of the Senate, but according to the amendment the president could then submit his own declaration to the Senate that he is, in fact, that no such disability exists. At that time the VP and the cabinet would have to state again that the president is unable to do his job, at which time it would fall to the full Congress to vote on whether he was not up to the job; this would require a two-thirds majority of both houses to make it stick. The chances of this happening are very slim.

The chances of the impeachment process being able to remove Trump from office areWhi not really any better. With a Democratic majority in the House of Representatives it should be no problem for articles of impeachment to be approved, but conviction in the Senate is almost certainly doomed to failure, since it would require a two thirds majority vote to actually remove the president from office.

While neither of the available options have much of a chance to remove the president from office, there is an advantage of the impeachment process that would help keep Trump from avoiding being held accountable for his actions once he leaves office. Many people have been worried that Trump would either try to pardon himself or resign from office for the purpose of allowing Mike Pence to pardon him. Luckily for us, Article 2 of the Constitution states that the president’s pardon power does not apply to cases of impeachment. This would mean that any charges of wrongdoing contained in the Articles of Impeachment could not be made to disappear by a presidential pardon. Someone might say that if there isn’t a conviction in the Senate then the pardon would be valid, but nowhere does the Constitution state that the Senate has any role; impeachment is separate from trial and conviction by the Senate, so therefore impeachment is all that’s necessary to invalidate any attempt to pardon someone for acts for which he was impeached. This means that the charges from the first impeachment as well as the additional charges related to the insurrection that a second impeachment might include would not be pardonable. For this reason impeachment is certainly the best option available here.

What if Trump Tries to Pardon Himself?

There has been a great deal of speculation regarding the fate of President Trump once he leaves office. One of the issues that has generated the greatest amount of attention considers whether he might try to pardon himself. A similar question is whether he might instead resign before the end of his term so that VP Mike Pence could step in for the final few days and issue Trump a pardon. An analysis of either of these possibilities should begin with the question of whether either one is even allowed under the Constitution.

Article Two, Section 2 of the Constitution states the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. The only time a president has received a pardon from another president is when Gerald Ford pardoned Richard Nixon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974”. It is largely because of this pardon that anyone is even considering the possibility that Trump might receive a pardon. What sets this pardon apart from all others is that at the time it was issued Richard Nixon had not been formally charged with any crime, so it sought to preempt any proceeding which might bring forth an indictment. Lots of people believe that Nixon’s pardon proves that Trump could be pardoned by Pence in much the same way, but that is by no means a foregone conclusion. The main reason the Nixon pardon stood is because no one sought to challenge its validity, whereas it is almost certain any such pardon issued by Trump or Pence would be subject to a court dispute.

The problem with such a broad, preemptive pardon as Nixon’s, as well as any liable to be issued on Trump’s behalf, is in its vagueness and the fact that the actual commission of any crime has not been established. How can a pardon be granted when no evidence has been presented that it even happened? Let’s remember that when a person accepts a pardon, he is actually admitting he is guilty of the crimes for which he received it. A pardon for no specific crime would appear to then be a pardon of every imaginable crime against the United States, from crossing against the light in a national park to molesting children in the White House residence; acceptance of every crime in general would rob the recipient of the ability to defend himself against any crime specifically. I don’t think any rational person, let alone the so-called “originalist” majority of Justices on the Supreme Court, would imagine that the Founding Fathers had such a broad interpretation in mind when they included the pardon power in the government’s founding document. Frankly, it makes no sense to think a pardon could be issued for an offense of which a person hasn’t even been accused, especially when no specific charge has been levied. Add to these things the fact that a presidential pardon, whether by Pence for Trump or by Trump for himself, would only help him avoid punishment for federal level crimes, leaving him still vulnerable to prosecution for crimes at the state level, where he would probably face the heaviest penalties in the first place. For all these reasons I personally doubt there will be any last minute pardons before Donald Trump leaves office as president.