The New York Times reports that we can expect a wave of pardons from Trump tomorrow, the last day of his presidency.
Not surprisingly, pardons are on everyone’s mind.
Here is the best answer I know:
- No, the pardons can’t be overturned
- Corrupt pardons can be prosecuted as a separate crime
- Trump can’t pardon himself, so if he pardons all the insurrectionists, he’ll be left to take all the blame
- He’ll hurt his chances of acquittal in the Senate
I doubt he will do it because it will hurt him.
On the other hand, not pardoning them creates a problem for him because the insurrectionists might start to realize they were duped, and he needs his base.
You’d think some of his supporters will realize that he set them up: He encouraged them to commit a crime (assuring them they’re saving the country) and then left them to face prison. The idea is to take down a criminal organization by getting the Kingpin.
The scholars I am familiar with (and trust) say this is a misreading. I agree with them. There is an alternative viewpoint out there, which I disagree with.
The clause says the president has power to “grant Reprieves and Pardons for Offenses against the U.S. except in Cases of Impeachment.”
The straightforward reading is that an impeachment cannot be undone by a pardon, which makes sense on multiple levels: An impeachment is not a criminal matter. The only penalties allowed are removal from office and inability to hold office again. Moreover, the Constitution also tells us that the House has the sole power of impeachment and the Senate has the sole power of removal. Allowing the president to pardon an impeachment means that the sole power doesn’t belong to Congresss.
Finally, here is Alexander Hamilton’s explanation of the pardon power:
If you want more discussion about this from law professor Brian Kalt, see this article.
How about this: he president later pays price in criminal court. Anyone who accepted or played a part in transactions of corrupt pardons is prosecuted for separate crimes. The party that perpetuates this fraud is penalized by the voters after the truth comes out (one hopes).
It seems to me they did, and they included a remedy: Impeachment and removal. The problem we’ve had the past 4 years isn’t just a corrupt president. The problem is that so many people (including the entire GOP elected leadership) shielded him.
If the elected officials of one party abuse the constitution and get reelected, the problem is with the electorate. For example, if a majority of Americans decided to reelect Trump–knowing everything we know about him–you can’t blame the Constitution.
No laws can protect a democracy if a clear majority of the citizens decide they no longer want a democracy because they will keep electing officials who will destroy rule of law.
The only real safeguard that failed was the Senate’s failure to act as a check on presidential power. That was enough to allow Trump to do much damage for 4 years, but it wasn’t enough to allow Trump to make himself a dictator.
I Agree. Expecting perfection in a set of laws is not realistic.
I also tend to resist any form of “let’s blame X.” How about: “This is a democracy, so let’s take responsibility.”
A few questions from my email
Q: Is there any legal requirement for the President-Elect to be inaugurated/take the oath? Seems like it is just a ceremony like getting married in a church after being married civilly. The Congress has proclaimed him President and the outgoing President’s powers automatically cease at 12:01 pm. Thanks.
Article II section I of the constitution tells us this:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
So yes, the swearing in (inauguration) is mandated by the Constitution.
Q: Can people pardoned by a president invoke their 5th amendment rights to answer grand jury questions assuming they have effectively been given immunity from prosecution? Could they be held in contempt of court ?
Presidential pardons do not reach state crimes, so that would depend on whether they still have state liability.
