Are the President’s Pardons Invalid?
Trump’s pardons of Roger Stone, Michael Flynn and others who lied for Trump should not be allowed to stand. The very idea that a president can pardon his own co-conspirators in a crime is revolting. But that’s what he did.
Could those pardons be overturned? Maybe… there’s good news: serious Constitutional scholars think Trump overstepped his power by pardoning his co-conspirators.
The President isn’t supposed to be able to thwart his own impeachment, and the Constitution (Article II, Section 2) seems to clearly ban Trump from pardoning anyone who is involved with the crimes for which he is being impeached.
So why are Stone’s and Flynn’s pardon not being challenged?
I was going to write a long blog about this, but happily someone with far more legal expertise than me has already done so. Constitutional scholar Martin H. Redish wrote an article in the New York Times, The President’s Pardon Powers May Be Weaker Than It Seems, which addresses this topic head on (emphasis added):
[The President can] exercise the pardon power, “except in cases of impeachment.” In its narrowest form, both textually and historically, this means that the president cannot pardon an executive or judicial officer — including himself — from impeachment conviction. But perhaps this reading doesn’t go far enough … [A more expansive] reading of the pardon power’s impeachment exception is linguistically consistent with the text: “except in cases of impeachment” arguably refers to any crime related to the impeachment, as much as it does to the narrow conviction.
Like all good legal scholars, Professor Redish asks us to take an argument to its logical outcome and then ask, “Is this what the framers of the Constitution really intended?”
Let’s start with the obvious: Trump’s pardons of the convicted criminals who participated in his own crimes were clearly intended to thwart his own impeachment. If his pardons are allowed to stand, it means there are no consequences to lying to Congress or a federal investigator. This in turn means that impeachment is nearly impossible; a president’s loyalists can lie to Congress with impunity, knowing a pardon will be forthcoming.
Furthermore, the “narrow” interpretation essentially gives future presidents a license to commit “high crimes and misdemeanors.” So long as the president’s own loyalists are the only witnesses, impeachment is impossible; these henchmen will know they’re essentially immune from the law when it comes to helping the president commit crimes.
And once you see this logical result, it’s clear that a more expansive interpretation of the Impeachment limitation clause of Article II is the only one that is tenable. Redish writes:
… what if the president preemptively pardons perjuring witnesses as a means of stopping any investigation into their behavior? What if witnesses friendly to the president choose to perjure themselves, assuming that the president will pardon them? In other words, even the mere possibility of presidential pardon in such situations presents a serious threat to the effective use of the impeachment power. It is reasonable, then, to find presidential pardon of witnesses in an impeachment proceeding automatically invalid. Otherwise, exercise of the pardon power seriously threatens the effective use of the impeachment power as a constitutional check.
This isn’t about Trump’s enablers, although I hope they’re thrown back in prison.
This is about the future: every President must know that Congress’s powers of impeachment and conviction, created to protect our nation from despots, are real. A President must know that can’t simply defang an investigation by suborning perjury and pardoning all of his co-conspirators.
I would love to see President Biden’s renewed Justice Department re-arrest Roger Stone, Michael Flynn, George Papadopoulos, Alex van der Zwaan, and all of Trump’s co-conspirators. I want to see them thrown in jail, and let it go to the Supreme Court for a decision. With Trump out of power, maybe even the conservative Supreme Court justices will have the courage to put this one right.
Originally published at https://authorcajames.com.
