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Pardons, Self-Pardons and Impeachment (Part II)

Following on my last post, we will now turn to the pardon power generally and what role Congress plays in checking abuses of that power.

The Pardon Power and Congressional Oversight

The power to pardon is, as Maddie McMahon and Jack Goldsmith note in a recent Lawfare post, “among the broadest of presidential powers.” The Supreme Court has stated:

The power thus conferred [by the Pardon Clause] is unlimited, with the exception stated [i.e., impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Ex parte Garland, 71 U.S. 333, 380 (1866); see also Schick v. Reed, 419 U.S. 256, 266 (1974) (pardon power “flows from the Constitution alone, not from any legislative enactments, and  . . . cannot be modified, abridged, or diminished by the Congress.”); United States v. Klein, 80 U.S. 128, 147 (1871) (“To the executive alone is intrusted the power of pardon; and it is granted without limit.”).

Not surprisingly, executive branch lawyers have been particularly forceful in applying this view to a number of issues surrounding the president’s exercise of the pardon power, resulting in what McMahon and Goldsmith term an “extraordinarily broad” interpretation of that power.

For example, the executive branch recognizes no congressional oversight authority with respect to pardons, either generally or in specific cases. Citing the line of Supreme Court authority noted above, the Office of Legal Counsel has opined that “the pardon power is different from many other presidential powers in that it is textually committed exclusively to the President.” Whether the President May Have Access to Grand Jury Material in the Course of Exercising His Authority to Grand Pardons, 24 Op. Off. Legal Counsel 366, 368 (Dec. 22, 2000). Thus, in finding that Congress was not entitled to information regarding President Clinton’s exercise of the pardon power, Attorney General Janet Reno advised that “Congress’ oversight authority does not extend to the process employed in connection with a particular clemency decision, to the materials generated or the discussions that took place as part of that process, or to the advice or views the President received in connection with a clemency decision.” Assertion of Executive Privilege With Respect to Clemency Decision, 23 Op. Off. Legal Counsel 1, 3-4 (Sept. 16, 1999).

This position might strike some as extreme (it so struck me, as I was advising the House committee seeking this information). While no one disputed the president’s unreviewable power to make the clemency decisions in question, one still might conclude the Congress may inquire as to whether congressionally funded resources, such as the Office of the Pardon Attorney, were being properly or effectively used.

The executive’s position, however, flows from its view that the pardon power is not merely unreviewable; it is subject to no objective standards whatsoever. See 24 Op. Off. Legal Counsel at 370 (“it is important to keep in mind that the factors bearing on the President’s decision to exercise his pardon power, as an act of mercy, are subjective and undefined.”). As the pardon attorney wrote to a senator in 1952: “In the exercise of his pardoning power, the President is amenable only to the dictates of his own conscience, unhampered and uncontrolled by any person or branch of Government.” See id. at 370-71. Under this view, the pardon power is truly an example of “l’etat c’est moi;” while a pardon may be criticized as unjust or ill-advised, it can never be illegal or unconstitutional.

The Pardon Power Contrasted with Impeachment

It may be useful to contrast the pardon power with another power the Constitution vests exclusively in one branch of government: the impeachment power. It is generally accepted that Congress has the exclusive and nonreviewable power to impeach and remove the president, the vice president or any civil officer of the United States. See generally Nixon v. United States, 506 U.S. 224 (1993). Thus, for example, whether the Senate has conducted a constitutionally adequate trial within the meaning of the Impeachment Trial Clause is a nonjusticiable political question. Id. at 236-38.

The finality and non-justiciability of Congress’s impeachment determinations, along with the significant discretion it exercises in determining what constitutes “high crimes and misdemeanors,” occasioned then-Representative Gerald Ford’s famous and much-criticized remark that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. . . .” Some argue that this is an accurate description of how impeachment works. See Michael J. Gerhardt,The Federal Impeachment Process: A Constitutional and Historical Analysis 103 (1996) (“Ford’s observation captures the practical reality of impeachment . . . .”).

As a normative and legal matter, however, Ford was clearly wrong. The Constitution establishes a standard for impeachment and removal (“Treason, Bribery, or other high Crimes and Misdemeanors”), which is textually incompatible, as Professor Rob Natelson has recently observed, with unlimited discretion. The framers specifically rejected a broader formulation, which would have included “maladministration,” precisely on the ground that it would confer too much discretion on Congress and amount to the president holding office “during the pleasure of the Senate,” as James Madison put it. See Charles L. Black, Jr., Impeachment: A Handbook 27-33 (1974).

Thus, while Congress’s impeachment judgments are final, they are not necessarily correct or even defensible. Unlike pardons, specific impeachment decisions can be criticized as legally wrong and unconstitutional. Ford’s observation is therefore perhaps best understood as a parallel to Justice Robert Jackson’s remark about the Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.” In matters of impeachment, Congress is “infallible” only because it is final.

In addition to the constitutional standard, there are significant structural safeguards that limit Congress’s discretion in impeachment matters. First, the initial decision to impeach must be made by the House of Representatives. Even if one believes (reasonably enough) that members “care more” about politics than law, building a solid prima facie case that the constitutional standards have been met is a practical necessity for developing a political consensus in favor of impeachment. Members know they will be accountable to their constituents for a vote to impeach. If impeachment is successful, moreover, the case moves to the Senate, where House managers act as prosecutors in an adversarial proceeding before that body. This creates a strong incentive not to bring cases that are factually or legally weak with regard to whether the accused has committed high crimes or misdemeanors.

As Professor Gerhardt points out, the Constitution provides a number of safeguards “to ensure that Congress will deliberate carefully prior to making any judgments in an impeachment proceeding.” Gerhardt, The Federal Impeachment Process 110. In addition to the House’s role, already noted, in a bifurcated process, these include that the Senate must (1) sit as a court of impeachment “on Oath or Affirmation;” (2) reach a judgment only after conducting a trial; and (3) convict only on the concurrence of two-thirds. The judicial nature of the proceedings is emphasized further when the president is on trial because the chief justice presides. These safeguards help ensure that impeachments do no occur for mere maladministration or policy/political differences. Id. at 111.

In contrast, the pardon power is exercised by a single individual, subject to no constitutional standard, and not required to follow any process at all to ensure careful deliberation. It is not subject to ordinary congressional oversight. There is thus only one constitutional check on the abuse of the pardon power. That check is impeachment. 

Abuse of the Pardon Power as Grounds for Impeachment

There can be little doubt that impeachment will lie for abuse of the pardon power. See In re Aiken County, 725 F.3d 255, 266 (D.C. Cir. 2013) (Kavanaugh, J.) (“The remedy for Presidential abuses of the power to pardon . . . [is] ultimately impeachment in cases of extreme abuse.”). As much was suggested by the Randolph/Wilson colloquy cited in my prior post, in which Wilson said that a president who corruptly pardoned his co-conspirators would be subject to impeachment, although it is unclear whether he meant impeachment for the pardons, the underlying crime, or both.

Randolph’s concerns about potential abuse of the pardon power were echoed by George Mason at the Virginia ratifying convention. Mason said “the President ought not have the power of pardoning, because he may frequently pardon crimes which were advised by himself . . . . If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” 3 Elliot’s Debates 497. To this, Madison replied:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty . . . .

Id. at 498.

It is noteworthy that Mason and Madison are speaking not only about the actual granting of improper or self-interested pardons, but the use of promises or threats of pardons to influence the administration of justice. Thus, Madison suggests that the president could be impeached simply where “there be grounds to believe” he “will shelter” any person with whom he has a suspicious connection.

Although the king was not subject to impeachment, English precedent also supports the conclusion that abuse of the pardon power is impeachable. The 1386 impeachment of the Earl of Suffolk and a number of others was based in part on the charge that the accused “had procured and counselled the King to grant Pardons of horrible Treasons and Felonies . . . which thing was against Law, and the King’s Oath.” William Petyt, Jus Parliamentarium, Or, The Ancient Power, Jurisdiction, Rights and Liberties, of the Most High Court of Parliament, Revived and Asserted, in Two Parts 193 (1741). As Professor Natelson has recently explained, this “misuse of the pardon power” described in Petyt’s mid-18thcentury treatise would have been among the impeachment precedents most familiar to the founding generation. Robert G. Natelson, Impeachment: The Constitution’s Fiduciary Meaning of “High . . . Misdemeanors,” 19 Fed. Soc. Rev. 68, 69-70 (2018).

Abuse of the pardon power also fits comfortably within the general understanding of “high crimes and misdemeanors.” Although it would not be, at least ordinarily, a criminal act, it falls under the category of “those offences which proceed from the misconduct of public men, or, in other words from the abuse or violation of some public trust.” The Federalist, No. 65 at 338 (Hamilton) (eds. George W. Carey & James McClellen 2001). This concept of breach of trust or breach of fiduciary duty is at the core of the meaning of “high misdemeanors.” Natelson, 19 Fed. Soc. Rev. at 71-72. Grounds of impeachment, therefore, include not only corruption and criminality, but “breaches of the duties of loyalty, good faith, and care, and of the obligation to follow instructions (including the law and Constitution) when administering one’s office.” Id. at 72. They do not, however, include mere policy or political differences, poor decisions, or maladministration.

Impeachable Abuses of the Pardon Power

With these principles in mind, we may ask what constitutes an impeachable abuse of the pardon power. The first category would be corrupt or self-interested pardons. This would include pardons granted or offered for personal gain, such as in exchange for a bribe or for purposes of covering up the president’s own involvement in wrongdoing.

A related category would be pardons reflecting blatant favoritism, such as those given to family members or close associates. Here it should be noted that some degree of favoritism in the granting or consideration of pardons seems to have been tolerated, if not exactly approved. President Clinton’s pardon of his half-brother, for example, received relatively muted criticism. It might be argued, therefore, that an impeachable abuse of the pardon power requires something more than an isolated instance of favoritism.

Another category would be pardons designed to obstruct the administration of justice or encourage future lawbreaking. Of course, many pardons may be thought to have this effect to some degree, but a pardon intended “to stop inquiry and prevent detection” by the criminal justice system (to use Mason’s words) would seem to be problematic even if the president is not involved in the underlying wrongdoing.

Professor Black gives a hypothetical that would also fit within this category:

Suppose a president were to announce and follow a policy of granting full pardons, in advance of indictment or trial, to all federal agents or police who killed anybody in line of duty, in the District of Columbia, whatever the circumstances and however unnecessary the killing. This would not be a crime, and probably could not be made a crime under the Constitution. But could anybody doubt that such conduct would be impeachable?

Black, Impeachment at 34. This is an extreme hypothetical (one hopes), but it would seem to be impeachable on grounds of faithless execution of the office of the president and breach of the duty to “take Care that the Laws be faithfully executed.”

A final category would include arbitrariness or recklessness in the exercise of the pardon power. Because the Constitution provides neither a substantive standard nor any required process for granting pardons, there may be substantial disagreement about how egregious the conduct must be to fall within this category. But even under the executive branch view that the propriety of a pardon is judged by nothing other than the president’s conscience, there must be a point at which the exercise of the pardon power is so arbitrary as to amount to “extreme abuse” warranting impeachment, to use Judge Kavanaugh’s words. The president must at least consult his own conscience, as opposed to, say, flipping a coin or acting on a momentary impulse. Put another way, at some point treating the pardon power as the president’s personal “plaything” can amount to an impeachable breach of trust.

In my next post we will apply this reasoning to our current circumstances.

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