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Feb 27 2020

Impeachment Is Forever

The Democratic Speaker of the House, Nancy Pelosi, has said it several times, before and after, Donald trump’s Senate trial, “impeachment is forever.” One of the consequences of this, even though he wasn’t removed from office, is that Trtump can’t parson anyone who connected to his impeachment, even Roger Stone. Corey Brettschneider, a professor of political science at Brown University and visiting professor of law at Fordham Law School, writes at Politico that the Constitution makes this very clear.

Speculation that President Donald Trump might pardon Roger Stone has reached a fever pitch after Stone’s sentencing by a federal judge and the president’s repeated hints that he thinks the verdict unfair. But fortunately, the Constitution’s framers imagined this nightmare scenario—a suspected criminal president pardoning a co-conspirator—and they put in the Constitution language to legally prohibit the pardon power in exactly this kind of case.

Both the plain meaning of the Constitution’s text and the historical evidence show that once a president has been impeached, he or she loses the power to pardon anyone for criminal offenses connected to the articles of impeachment — and that even after the Senate’s failure to convict the president, he or she does not regain this power.

Under Article II, Section II of the Constitution, the president is given the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” Pardons are supposed to be used as acts of mercy. The framers thought of the pardon power as a “benign prerogative”—prerogative because it was mostly unchecked by courts or Congress, but benign because presidents would use it for the public good.

But the framers knew not to place blind trust in the president to wield the power justly. That’s why they explicitly forbade a president from exercising the pardon power in “cases of impeachment.” The clause prevents the worst abuse of the pardon power: a president’s protecting cronies who have been convicted of crimes related to the president’s own wrongdoing.  [..]

The limit on pardons for co-conspirators wouldn’t affect many of the president’s pardons. Pardoning convicted criminals like former Illinois Governor Rod Blagojevich might be ill-advised, but it is still permitted. By contrast, pardoning longtime adviser Roger Stone would not be permitted, as his crimes relate directly to the impeachment case.

Stone was convicted on seven criminal counts centered around allegations that he had lied to Congress during his September 2017 testimony to the House Intelligence Committee as part of the Mueller investigation. The investigation of Stone relates to the charges that the president abused power by soliciting foreign intervention into our election and that he obstructed justice in trying to hide that “high crime and misdemeanor.” The best evidence that Stone is tied to those charges is his own self-described role as a protector of the president. “I will never roll on [Trump],” Stone declared in one of many statements. That makes him exactly the type of person Madison had envisioned while limiting the president’s pardon power.

It is true that the Stone investigation concerned Russian involvement in the election and that the House charges focused on the more recent Ukraine accusation. But the articles of impeachment focused on the accusation of “abuse of power,” and it is that general high crime at play in Ukraine and elsewhere that links the impeachment and Stone. [..]

The framers deliberately used the phrase “cases of impeachment,” not “conviction.” One reason why is simple: A president convicted by the Senate would be removed from office, and thus unable to pardon anyone. As such, there would be no reason for the Constitution to curb a convicted president’s pardon power. No exception to the pardon power needs to be granted, because no such power exists.

Moreover, the framers provided no explicit avenue for him to regain the power they took away after a House impeachment vote. Time limits are common in the Constitution—think of the president’s four-year term—and the absence of one connected to the pardon power suggests that the power is not in fact lost for a limited duration. In the absence of an explicit reinstatement of pardon power in the text, the strong presumption has to be that it is still lost. [..]

The argument for a constitutional limit on the power to pardon co-conspirators is strengthened by the widely acknowledged implicit limit on “self-pardons.” The Department of Justice’s Office of Legal Counsel, prompted by the possibility that President Richard Nixon would try to grant clemency to himself for his role in Watergate, argued that a president could not pardon himself. According to that office, no person should be a “judge in his own case”; therefore, no president could self-pardon. Although not technically a self-pardon, pardons for co-conspirators are similarly aimed at self-protection, so should also be barred.

The dangers of Trump’s pardoning someone “connected” to his own alleged high crimes in a “suspicious manner” have not abated after the Senate vote. They have, if anything, been amplified because he appears to have interpreted the failure of the Senate to convict him as evidence that he is unchecked in his power. Both constitutional law and common sense suggest that he loses the pardon power forever in cases related to the impeachment. But the Constitution requires people to enforce it. If the president attempts to pardon Stone, his own lawyers and those in the Department of Justice should inform him that such a pardon would exceed his powers as president, just as Nixon’s Office of Legal Counsel told Nixon he could not self-pardon. [..}

If Trump’s lawyers and advisers fail to stop him, and the president moves ahead with a pardon for Stone, it is incumbent upon any judge asked to enforce that pardon to deny it on constitutional grounds. The Supreme Court has never ruled on the meaning of the impeachment exception to the pardon power because such a pardon of a co-conspirator by a president who has been impeached is unprecedented. But the need to stop it is dire. Otherwise, the original purpose of the pardon power—to show mercy to others—will be turned on its head. Instead, the pardon power will be converted into a self-serving tool of an aspiring despot, precisely the danger Mason warned against.

Keep in mind, Trump has repeatedly said he can do whatever he wants according to Article II. He obviously hasn’t read it.