Tuesday, June 12, 2018

If Trump Can Pardon Himself, Can He Also Prevent Himself From Being Impeached?

by Neil H. Buchanan

One of the most important recent degradations of our constitutional order has arrived in the form of Donald Trump's claim that he can pardon himself.  That threat is even more worrisome in light of the rapid acquiescence by Trump's enablers in agreeing with his outlandish claim.

This acquiescence is not, moreover, limited to the spineless Republicans in Congress.  In The Washington Post, for example, a Stanford Law School professor (who once had a reputation as a principled conservative) ran through the suddenly-standard Trumpist excuses to say that Trump is "not wrong" about self-pardons.

This is nonsense.  People who claim that the legal text is clear and that Trump can get away with anything that is not explicitly ruled out by the Constitution are wrong.  They opportunistically make exceptions when necessary, and then they drop the exceptions when convenient.  Literalism is, in the end, a useful starting point that is all too easily turned into a mindless tool by mindless tools.

Again, Trump's minions now eagerly argue that he is right to claim that he can pardon himself.  As usual, the fall-back position from those who want to hold onto some dollop of credibility is that Trump cannot ultimately get away with everything because Congress can impeach him and remove him from office.

This, like the excuse-making after Trump claimed that he tautologically cannot obstruct justice, cynically turns a blind eye not only to the fact that Republicans in Congress have shown that they will never impeach Trump but that Republicans' mid-term election strategy is boiling down to shrieking to his base voters: "Get to the polls, because the Democrats are going to impeach our man!"

In short, the same people who would have impeached President Obama for committing even one of Trump's uncountable outrages are saying: "A president can do anything he wants until he is impeached, but nothing Trump has done is impeachable, and we will never impeach him.  Even so, please try!"

The cynicism is thick, but my focus here is on the literalist arguments that are coming out of the pro-Trump camp.  The basic claim is that the pardon power is absolute because the Constitution supposedly says so.  The entirety of the pardon clause in Article II, Section 2 states that the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

As I argued after Trump's pardon of the racist former sheriff Joe Arpaio last summer, too many liberals immediately surrendered and agreed (after professing sadness and resignation) with Trump's assertion that he has absolute pardon power.  But of course they then added that it was not completely true that the pardon power is absolute, and people argued at the time that self-pardoning would be one example of something that Trump could not do.

But, Trump's people asked, why not?  If the argument is based on textual literalism, where in the pardon clause is the limit on self-pardoning?  If a president can undercut the judicial power by pardoning Arpaio, on the theory that "shall have Power" means "shall have complete power notwithstanding its impact on the constitutional order," then why can he not pardon himself?

Of course, the clause does not explicitly say that the president has absolute power to grant reprieves and pardons, nor does it say that the president shall have unreviewable power to do so, even though the Framers could have written it that way if they had wanted to do so.  That is what unclear text looks like, and it is why provisions like this are simply not clear and obvious.

As I argued in my Arpaio column, it is axiomatic that courts possess the ability and responsibility to interpret the meaning and limitations of constitutional provisions.  A court might end up concluding that "power to grant" pardons implies that the power is absolute, when the provision itself does not say so, but getting there is a matter of constitutional interpretation, not unthinkingly reading an expansive interpretation into an ambiguous provision.

The op-ed in The Post to which I referred above cites an 1866 case for the proposition that pardons are "not subject to legislative control," which notably says nothing about judicial control or review of the extent of the pardon power.

More importantly, even that absurdly expansive 5-4 Supreme court ruling, Ex parte Garland, contradicts itself by saying that "[t]he power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment," but then adding: "There is only this limitation to its operation: it does not restore offices forfeited or property or interests vested in others in consequence of the conviction and judgment."

But why is that a limitation on the pardon power?  The majority merely cites to Blackstone's Commentaries, with not a word of explanation.  Apparently, the pardon power is absolute except that it is limited, and not only by the constitutional text.  (As an aside, I can see good arguments for such an exception, but those arguments are not based on the expansive reading of the text that the Court otherwise applies.)

And what about the apparent acceptance by many commentators that, for some reason, the pardon power does not extend to future crimes?  Yes, there is a good argument against allowing the president to do that, but where is it in the Pardon Clause?  "Power to grant Reprieves and Pardons for Offenses against the United States" has no explicit time dimension, so we are off to the races.  Note that it does not say "Offenses committed against the United States," which would at least imply past tense (though not dispositively).

Similarly, there is a good argument that "crimes against the United States" should be viewed only as covering federal crimes and not crimes against any of the fifty united states, but I can see someone saying that the text (capitalization notwithstanding) allows the president to pardon crimes against any of those states.  Of course that is absurd, but like the limitation on self-pardoning, the argument against it cannot be found in the text itself.

This is, again, so obvious that it is almost tempting to be embarrassed for the people who are relying on the literalist argument.  The Constitution is not self-negating, and a president who can self-pardon would effectively upend the rule of law that the Constitution is designed to guarantee.  As Laurence Tribe put it last July:
"The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself."
A full-on literalist, of course, can simply ask why that should matter.  Why can a president not do something that the Constitution says he can do, simply because doing so might have an impact on some other aspect of the Constitution?  The Framers could have been clear, but they never did write that the Constitution is not self-negating or that it has to be read to make sense.  Maybe they wanted it to implode!

But even if one accepts Tribe's argument (as I do), consider a possibility that I came across recently (in a column that I cannot now find and thus cannot provide a link).  Suppose that Trump for some reason accepts that he cannot pardon himself, but while grousing about how unfair everything is, he notices Section 3 of the 25th Amendment:
"Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President."
Suppose that Trump then sends such a written declaration, at which point Acting President Pence pardons Trump, and Trump promptly transmits the written declaration to the contrary, thereupon becoming President again.  As long as he has a lapdog as Vice President -- and Pence has proved himself nothing if not shamelessly worshipful of Trump -- Trump would have effectively created the power to self-pardon by literally applying the Constitution's text to get around its meaning.

One might ask why Trump would even bother doing such a thing, given that he could wait until the second to last day of his presidency -- assuming, as I do not, that Trump will ever voluntarily leave the White House, even if he has lost an election or has served two full terms -- at which point he could resign and allow Pence to become president and pardon him then.  But there are reasons to think that Trump would want to maintain leverage over Pence by holding onto the unilateral power to un-resign, which is what the 25th Amendment provides.

But beyond the reason that he might do so, the point is that nothing in the 25th Amendment or elsewhere in the Constitution explicitly says that Trump cannot pull such a stunt.  Trump's people, if they were to be consistent with their literalism when it comes to Trump's powers, would thus say that Trump can self-pardon indirectly even if he for some reason is prevented from self-pardoning directly.

Once we are down the literalist rabbit hole, however, we might as well have some perverse fun and see what else might be literally not prohibited by the Constitution.  According to Section 3 of Article I, "no person shall be convicted without the concurrence of two thirds of the members present" in the Senate.  So it is only necessary to have the concurrence of members present, eh?  Suppose the president, in advance of the Senate's vote, drugs or imprisons all of the senators who plan to vote to convict.  No conviction, right?

Ah, but it is illegal to drug people, and it is obstruction of justice to prevent senators from carrying out their duties, so the president would have committed multiple crimes.  This poses no difficulty, of course, because the president (or, if the work-around is necessary, the vice president) can self-pardon in this literalist world.  (He could also, of course, then pardon the people who aided and abetted his crimes.)

Trump would still be president, because he would not have been impeached, even though the reason that he was not impeached is that he prevented that from happening through illegal means.  This leads to the conclusions that he can actually prevent himself from being impeached, which is the one saving grace that Trump's people currently tell us is provided by the Constitution to prevent him from becoming a dictator.

But perhaps that does not work, because the Pardon Clause carries the exception to the president's powers in cases of impeachment.  The problem with that response is that the president would not be pardoning himself for things he did that led to his being impeached by the House and tried in the Senate, which is what the Pardon clauses exception covers, so he could endlessly prevent his own impeachment by committing crimes that prevent his impeachment.

Does that exception perhaps have a broader scope?  Should the president's "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" be read to say that acts surrounding an impeachment trial are included among the offenses for which the president lacks pardon power?  I think it would be reasonable to say so, but then I am not a literalist.  The most literal reading of "cases of impeachment" is limited to the case itself, not acts surrounding the impeachment process.

For example, if the president were impeached for obstructing justice by firing the FBI Director with corrupt intent, the case of impeachment would be about Trump's obstruction.  If he were to commit other impeachable offenses to fend off the first impeachment, that would bring up future possible cases for impeachment -- which would, of course, mean that we would then be in a cat-and-mouse game in which Congress would need to figure out how to impeach and convict the president before he could commit more crimes to stop it from happening.

None of this is necessary or even plausible, of course, because it is obvious that the Constitution makes no sense if it is read to allow a president to be above the law.  Yet that is exactly what Trump and his pseudo-lawyerly defenders deny, saying instead that if they can read the text to impose no literal limits, then there are no limits of any kind.  Their assurance that this is all ultimately controllable through the impeachment process is cold comfort when that process itself is not literally foolproof.

5 comments:

Howard Wasserman said...

Rather than self-pardon (or Pence-pardon) for kidnapping Senators, he could just halt the investigation and prosecution of the kidnappings and fire any prosecutors or agents who disregard his orders to halt the investigation.

Shag from Brookline said...

If there were to be a second constitutional convention, perhaps it might address concerns with the literalist view of the pardon clause discussed in this post. With the Trumpian view in mind, I wonder how such concerns might be addressed.

Joe said...

A group that is inclined to read "expressly" into the 10A by implication basically shouldn't find it too hard to determine that there is a basic understanding that you cannot be a judge of your own case. This includes self-pardons.

And, even when someone does have the power to pardon, it can be used in a corrupt way that can be grounds for impeachment (the matter was addressed during the Constitutional Convention to explain why no exception "for treason" or the like was fatal, including if an executive used it to help conspirators) and later [moving past the whole prosecution in office problem] criminal prosecution for something like bribery or treason.

The breadth of the "except for impeachment" limit is unclear but if Trump does use it to interfere with the process, it very well is at least grounds of impeachment. The Arpaio pardon was to me a hard case -- I think he had the power to do it though if it was an interference of his duty to faithfully execute the laws, it very well might again be a grounds for impeachment. That's a high test though & obviously he can use the pardon and commutation power in bad ways, including to benefit bad people and promote bad things.

Asher Steinberg said...
This comment has been removed by the author.
Asher Steinberg said...

"a Stanford Law School professor (who once had a reputation as a principled conservative)"

He still has that reputation. (I don't deny that other major legal conservatives have lost theirs.) He didn't stop being a principled conservative just because you disagree with him about something, for reasons which remain rather obscure after reading this post, which barely contains an argument against self-pardons. Most of what you say reasons that there are lots of limitations on the pardon power that a literal reading of the pardon clause wouldn't explain, so why not this limitation too? The problem with that (besides the "why not this limitation too" part) is that it's hardly self-evident that any of the limitations you identify are inconsistent with a literal reading of the pardon clause; whether that's right would depend on what "pardon" means, or meant in late-18th-century legal usage. Were it the case that pardons just definitionally weren't things that wiped out forfeitures of offices or restitutionary parts of criminal judgments, or things that could excuse future offenses, well then, it's not just consistent with but actually compelled by a literal reading of the pardon clause that those items wouldn't flow from presidential pardons. (Of course, there may also be a linguistic argument that pardons just definitionally were bestowed on someone other than the person doing the pardoning, like gifts are arguably definitionally bestowed on someone other than the person doing the gifting. I don't know.)

Anyway, you haven't fairly described McConnell's argument, the nub of which seems to be that there was actually a vote in 1787 on a proposal to narrow the pardon power to, if not exclude self-pardoning, exclude an offense that one of the major framers was worried presidents might commit and pardon themselves for, and that this proposal failed, partly because another critical framer said that self-pardons weren't a problem given that Presidents could still be impeached. Now, I'm not an originalist myself so that episode means somewhat less to me, and probably you, than it does to McConnell. But if one is an originalist, as he is, it seems like a pretty decent originalist argument, one that deserves a response if you're going to respond to him at all, and certainly one that a principled conservative (or serious principled liberal, for that matter) can make.

Finally, about the rabbit hole at the end, I think one hardly has to be a literalist to say that if the Senate never holds a vote to impeach a President because all the Senators are drugged, the President hasn't been impeached, and to further say that the Constitution (as opposed to criminal law) doesn't prohibit drugging Senators. I don't know that it bothers me that the Constitution would allow a President to continuously kidnap Senators and then pardon himself, as it strikes me that a President bent on repetitively kidnapping the Senate and basically assuming dictatorial powers is not going to be restrained by limits on the pardon power or strained interpretations of the pardon clause to exempt impeachment-obstructive kidnapping offenses. In such a total crisis, what would have to save us, I'm afraid, is not the Constitution, but the military.