IM­PEACH­MENT?

The New York Review of Books - - News -

To the Ed­i­tors: “What Are Im­peach­able Of­fenses?” by Noah Feld­man and Ja­cob Weis­berg [NYR, Septem­ber 28] presents a schol­arly re­view of Ar­ti­cle II, Sec­tion 4 of the Con­sti­tu­tion of the United States, which pro­vides: “The Pres­i­dent, Vice Pres­i­dent, and all civil Of­fi­cers of the United States, shall be re­moved from Of­fice on Im­peach­ment for, and Con­vic­tion of, Trea­son, Bribery, or other high Crimes and Mis­de­meanors.”

The text and his­tory have pro­vided enough prob­lems for the bright­est minds to fully oc­cupy them­selves, as the es­say con­firms. But this does not jus­tify adding snap judg­ments by the au­thors on other “of­fenses” such as “a self-par­don, which would be in­ef­fec­tual be­cause no judge would re­gard it as valid.”

I be­lieve the au­thors are wrong.

Ar­ti­cle II, Sec­tion 2, Clause 1 of the Con­sti­tu­tion gives the pres­i­dent the power to par­don for “Of­fenses against the United States, ex­cept in Cases of Im­peach­ment.” Im­peach­ment is the only ex­cep­tion be­cause the Con­sti­tu­tion re­quires that im­peach­ment re­quires re­moval from of­fice.

The Con­sti­tu­tion does not pro­hibit a pres­i­dent not im­peached from par­don­ing him­self.

The clos­est his­tor­i­cal event in Amer­i­can his­tory is the only time a pres­i­dent was par­doned. That was when Pres­i­dent Richard Nixon was par­doned by his suc­ces­sor, Ger­ald Ford. Nixon had ap­pointed Ford as vice-pres­i­dent un­der the Twenty-fifth Amend­ment when Vice Pres­i­dent Spiro Agnew re­signed to avoid in­dict­ment for crimes he had com­mit­ted.

There­after, Nixon re­signed to avoid im­peach­ment and he was promptly par­doned by Ford, who had suc­ceeded Nixon as pres­i­dent. There was con­sid­er­able opinion at the time that it was all agreed upon be­fore­hand. That is, Nixon did in­di­rectly and in two moves what he feared to do di­rectly. This is the clos­est prece­dent for the pres­i­dent to par­don him­self, and it is likely to be cited by Trump for par­don­ing him­self. Or, fol­low­ing more closely the Nixon-Ford for­mula, Trump could agree with Vice Pres­i­dent Mike Pence that Trump would re­sign as pres­i­dent on con­di­tion that when Pence be­came pres­i­dent, he would par­don the out­go­ing Trump. Pence would be de­lighted, and so would many Repub­li­can leg­is­la­tors who would be happy to re­move the Trump dark shadow on con­sti­tu­tional govern­ment. Be­fore leav­ing of­fice, Trump would also likely par­don his cronies, in­clud­ing his fam­ily.

To avoid these pos­si­bil­i­ties, the Con­sti­tu­tion should be amended to pre­vent the pres­i­dent from par­don­ing him­self di­rectly, or in­di­rectly through the vice-pres­i­dent be­com­ing pres­i­dent. It should also pro­hibit par­don­ing the pres­i­dent’s fam­ily, and all who served in of­fice dur­ing his pres­i­dency.

Bur­ton Caine Pro­fes­sor of Law Emer­i­tus Tem­ple Law School Cyn­wyd, Penn­syl­va­nia Noah Feld­man and Ja­cob Weis­berg re­ply: Pro­fes­sor Caine is cor­rect that the text of the Con­sti­tu­tion does not ex­pressly ex­clude self-par­don. But hap­pily, no amend­ment is nec­es­sary to make it clear that the pres­i­dent can­not par­don him­self. His­tory, lan­guage, and more im­por­tant, the un­der­ly­ing logic of the rule of law all support the con­clu­sion that the no­tion of self-par­don can­not be con­sti­tu­tion­ally de­fended.

To be­gin with, the his­tor­i­cal par­don power that pre­dated the Con­sti­tu­tion was al­ways di­rected at a per­son other than the par­doner. The king of Eng­land could not be sued or crim­i­nally charged in his own courts with­out his con­sent; con­se­quently, his pre­rog­a­tive to par­don did not ap­ply to him­self. The ex­ec­u­tive cre­ated by the US Con­sti­tu­tion al­most cer­tainly had to be im­peached and re­moved be­fore be­ing charged crim­i­nally. And as James Ire­dell, later an im­por­tant jus­tice of the Supreme Court, ex­plained at the North Carolina rat­i­fy­ing con­ven­tion, the pres­i­dent could not par­don an im­peach­ment—which meant he could not keep him­self in of­fice, and by im­pli­ca­tion could not par­don him­self.

As a mat­ter of lin­guis­tic sense, “par­don” also does not plau­si­bly ex­tend to an act per­formed by the pres­i­dent on him­self. To par­don is to for­give. One for­gives the act of an­other. One can­not for­give one­self, ex­cept by a metaphor­i­cal ex­ten­sion of the term that has no place in le­gal dis­course.

Fi­nally, and most fun­da­men­tally, the no­tion of self-par­don would un­der­cut the ba­sic repub­li­can prin­ci­ple that ev­ery per­son, in­clud­ing the pres­i­dent, is sub­or­di­nate to the law. A pres­i­dent who could self­par­don would be a king, or rather a Ro­man em­peror. As the first line of Jus­tinian’s Code has it, “prin­ceps leg­ibus so­lu­tus est”: the sov­er­eign is not bound by the law. That is very close to be­ing the an­tithe­sis of repub­li­can govern­ment.

The Con­sti­tu­tion can­not and must not be in­ter­preted to in­clude the seeds of its own de­struc­tion by al­low­ing a self-par­don­ing pres­i­dent to vi­o­late the law and then free him­self of its con­se­quences. We are con­fi­dent that the Con­sti­tu­tion for­bids self­par­don; and as one of us has writ­ten (in Bloomberg View, July 21, 2017), we are con­fi­dent as a pre­dic­tive mat­ter that the courts would not rec­og­nize a pu­ta­tive self­par­don as valid.

In con­trast, when Ger­ald Ford par­doned Richard Nixon, the crit­i­cism was loud and le­git­i­mate; but no one se­ri­ously doubted the par­don was legally valid. If that par­don was the re­sult of an il­licit deal, it vi­o­lated the spirit of re­pub­li­can­ism but not its let­ter. If, how­ever, that par­don was granted in the hope of right­ing the ship of state by avoid­ing a trial the pub­lic could not tol­er­ate, it was an act of states­man­ship that may be de­fended on the ground of its his­tor­i­cal ef­fects.

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