http://www.nationalreview.com/article/449816/donald-trump-pardon-power-congressional-impeachment
The President’s Pardon Power Is Absolute
Donald Trump leaves after a meeting in the Oval Office (Reuters: Carlos
Barria)
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by Michael Stokes Paulsen July 25, 2017 3:30 PM
But so is Congress’s impeachment power.
Donald Trump is right, or more precisely, his lawyers are: The
president’s constitutional power to grant pardons for violations of
federal law is absolute.
Article II, Section 2 of the Constitution grants the president the
unqualified power to “grant Reprieves and Pardons for Offences against
the United States, except in Cases of Impeachment.” Legally, the
president may pardon whomever he wants, whenever he wants, for whatever
reason he wants, for any and all violations of federal law. (He has no
power to grant pardons for state-law violations.) He may pardon crooks,
cronies, and co-conspirators in his own corruption.
And, though it goes against every principle of natural justice and the
traditions of the law, he may even pardon himself.
The only limitation set forth in the Constitution is that the president
cannot pardon an impeachment conviction.
But there’s the catch. The impeachment power is, essentially, plenary
too. It is not limited to cases of commission of an ordinary federal
crime, though it certainly can include those. Rather, the House’s
ability to impeach, and the Senate’s to convict, for “high Crimes and
Misdemeanors” commits to the political judgment of Congress whether a
high government official has so misused official power, violated the
public trust, or abused the Constitution as to warrant removal from
office.
As Alexander Hamilton put it in Federalist No. 65, the power of
impeachment is designed to address “the misconduct of public men” in the
form of “the abuse or violation of some public trust.” Impeachable
offenses “are of a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done
immediately to the society itself.”
Constitutionally, if a majority of the House of Representatives (voting
to bring charges) and a two-thirds majority of the Senate (sitting as a
“court of impeachment”) agree that an official has sufficiently misused
his power or misbehaved — literally “misdemeaned” in 18th-century
American English — that person can be removed by impeachment, whether or
not what he has done is also subject to federal criminal prosecution.
The only limitation set forth in the Constitution is that the
president cannot pardon an impeachment conviction.
The distinction between impeachable offenses and statutory crimes is
reflected in the clause of the Constitution setting forth the
president’s pardon power: He may pardon the commission of “Offences
against the United States” — crimes — “except in Cases of Impeachment.”
Criminal prosecution is one thing; removal from federal office is
something else entirely. The president can pardon the commission of
crimes, but Congress’s judgment concerning impeachment is final, subject
only to the few procedural rules specifically set forth in the
Constitution’s text.
It follows that Congress can use the impeachment power to remove a
president when a simple majority of the House and a two-thirds majority
of the Senate judges that the president has violated the Constitution.
Congress is not bound by court decisions in this regard; its power is
its own. It also follows that Congress may impeach and remove a
president when it judges that a president has misused or abused a
constitutional power that he actually possesses. Thus, although the
pardon power may be plenary, if a president uses it for corrupt reasons,
Congress may impeach him for such a misuse of constitutional power.
This principle applies to all exercises of presidential constitutional
power. If the president, as commander-in-chief, exercising the
constitutional power he possesses to conduct wars Congress authorizes,
orders the military to deliberately target innocent civilians, Congress
may impeach and remove him for doing so if it judges his actions to be
an abuse of power. If the president, exercising his constitutional power
to “take Care that the Laws be faithfully executed,” discriminates
against a class or category of citizens in his execution of the laws,
Congress may impeach and remove him for what it judges to be a misuse of
constitutional power. If the president, exercising his broad
constitutional power over foreign affairs, betrays the nation’s
interests in the judgment of Congress — say, by surrendering to an
enemy, or neglecting his duties in a crisis, or giving away vital
national secrets or intelligence — Congress may impeach and remove him
for such acts.
All such presidential actions arguably fit, technically, within the
broad scope of powers that the Constitution confers on the office. But
misuse of any of them also falls within the broad scope of the
impeachment power that the Constitution vests in the House of
Representatives and the Senate as a check against misconduct by
executive or judicial officers.
This balance of strong constitutional powers, held by different branches
of the national government, is exactly what the framers of the
Constitution sought to achieve. President Trump can do whatever he likes
with his pardon power. But if Congress decides that he has abused that
power — or any other — it has absolute authority to impeach him.
— Michael Stokes Paulsen is a professor of law and distinguished
university chair at the University of St. Thomas, in Minneapolis. He is
the co-author, with Luke Paulsen, of The Constitution: An Introduction.
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