Bench Memos

Law & the Courts

The Plenary Pardon Power (and the Powerful Check of Impeachment)

Just posted on the National Review home page is a short article of mine under the title The Pardon Power is Absolute (with the subheading “But so is Congress’ impeachment power”). 

My argument, in a nutshell, is that the president’s pardon power is constitutionally unlimited (with respect to federal crimes): he may pardon whomever he wants – including himself – whenever he wants and for whatever he wants.  The argument made by some that the president cannot pardon himself amounts to little more than reading into the Constitution a limitation that simply is not there.  Such a limitation might have been a good one for the framers to have placed on the exercise of the pardon power.  They just didn’t do so.

The check, as always, is impeachment — which is the article’s other main point. The House may impeach, and the Senate (by two-thirds majority) convict and remove from office, a president who, in the judgment of the two houses of Congress, has violated the Constitution or who has abused constitutional powers he (otherwise) legitimately possesses.  Abuse or misuse of constitutional power easily fits within the scope of the broad term “high Crimes and Misdemeanors,” under the original meaning of the term in Article II of the Constitution.  The judgment as to what acts qualify and what acts do not, is left to the political-constitutional determination of the House in deciding whether to impeach and the Senate in deciding whether to convict.   

An excerpt from the article:

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.

 

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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