Politics & Policy

The President’s Pardon Power Is Absolute

Donald Trump leaves after a meeting in the Oval Office (Reuters: Carlos Barria)
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.

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— 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.

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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