Pardon me, Mr. President

Article II of the Constitution, ratified this week (June 21) in 1788, details the powers of the executive branch of the government, and among the more controversial of those powers is the chief executive’s – the president’s – “Power to grant Reprieves and Pardons for Offenses Against the United States, except in Cases of Impeachment.” The “Offenses Against the United States” language meant the president can only issue pardons for “offenses” – crimes – that are federal, not state or local.

So, excepting those who have been impeached or have not committed federal crimes, the president can pardon anyone, which is controversial enough. But despite the uproar over President Trump’s recent tweets that he can pardon himself, regardless of what Special Counsel Robert Mueller’s investigation turns up, the fact is he can pardon himself.

In specifically stating that the president cannot pardon anyone who has been impeached, including himself, the Constitution is saying that impeachment (and non-federal crimes) is the one and only exception to the president’s pardon power. If the Founders had wanted to deny a president the power to pardon himself (or herself) for any other reason, like, say, the results of a federal investigation such as the one Special Counsel Mueller is conducting, they would have included language to that effect in the Constitution.

That said, should the Mueller investigation find credible evidence that President Trump has violated the law, and Trump pardons himself, then Congress can conclude that it might be an abuse of the pardon power, and if it concludes such, it can begin impeachment proceedings.

Which is how the Founders intended it. Mueller’s investigation is about whether President Trump has participated in illegal activities. If so, Trump may use his constitutional, aka legal, power to pardon himself. Thus, it is a legal dispute.

But the Founders believed that deciding the really important, and/ or controversial, issues should be done through the political process, in which the governmental branch most beholden to the people, the legislative branch, has jurisdictional primacy, rather than unaccountable judges.

And make no mistake, an impeachment proceeding is political. Through a simple majority vote the House of Representatives decides whether to impeach, and by a two-thirds majority vote the Senate decides whether to convict. And all members of Congress cast their votes based on political considerations that are heavily influenced by the feelings of their voting constituents.

Legally speaking, for example, Bill Clinton should have been impeached. He lied to a grand jury, which is perjury, and he obstructed justice. Politically speaking, however, the public did not think his lies and obstruction to cover-up a sexual dalliance with a young White House intern rose to the level of “high Crimes and Misdemeanors.” Bruce G. Kauffmann Email author Bruce G. Kauffmann at bruce@history lessons.net.