The president’s constitutional power to grant pardons is limited by impeachment
The Constitution makes clear that the president has the power to grant pardons, “except in cases of impeachment.” Some scholars have long seen that clause as an anemic power, only preventing a president from pardoning someone from facing impeachment or undoing the penalties that result from a Senate conviction.
We and other legal scholars understand the clause to mean something different — that the president cannot pardon himself or others in matters directly associated with his own impeachment. Under this view, Trump could issue no pardon for himself or the insurrectionists for criminal charges related to the events of last week. Recently, other scholars, including Lawrence Friedman and Kim Wehle, have adopted this view, which we developed at length here and here.
The key point is this: Even though the pardon power for federal crimes is virtually unlimited, Congress may still vote to impeach and remove a president for abusing the pardon power. Among legal scholars, this is not a controversial point. If a president issues terrible pardons, impeachment and removal is the mechanism to hold that president accountable.
But how does this accountability mechanism function if a president issues a pardon designed to disable the impeachment process itself — either by a president pardoning himself or by pardoning others to prevent them from providing vital information to Congress for his own impeachment? As we and other legal scholars have argued, the exception explicitly mentioned in the Constitution — that the president has the power of pardon “except in cases of impeachment”— should be interpreted to preclude pardoning himself or others whose acts were directly connected to his own impeachment.
The House of Representatives could move to strip Trump of his pardon power
Congress’s own interpretation of the pardon power may matter greatly, especially since the Supreme Court has never definitively decided the extent of the impeachment exception. Recent news reports indicate that members of Congress also understand impeachment to strip the president of his pardon power. Rep. James E. Clyburn (D-S.C.), for instance, indicated that he is open to the view that the phrase gives the House the power to strip a president of the powers of pardoning in matters related to the insurrection
This matters, too, for how courts ultimately decide the question. Courts have a history of deferring to Congress on matters they deem inherently political. That deference is especially prominent in matters of impeachment. The Constitution grants the House the “sole power” of impeachment. And the Court ruled in Nixon v United States, a case about a federal judge named Walter Nixon, that the Senate had the power to set its own rules in impeachment trials. That is, as long as the rules are in accordance with the Constitution’s specific regulations, the courts would not micromanage the impeachment process. Given this precedent, the courts may see fit to give Congress leeway in this case.
The House’s power to restrict Trump’s pardon ability is a critical tool Congress needs to investigate impeachable acts and hold presidents accountable. By stripping the president of his ability to pardon himself and others inciting or participating in the insurrection, Congress would limit Trump’s ability to continue to interfere in investigations of his own wrongdoing, something he has done repeatedly and could continue to do in his last days in office if he uses the power to pardon unchecked.
Congress can use the impeachment process itself to preempt Trump’s attempts to pardon
How might Congress activate its powers? The most obvious place would be in the articles of impeachment themselves. Congress might announce that it is intentionally stripping the president of the power to pardon himself or anyone else directly associated with the crimes related to the insurrection.
Congress can also take other steps to clarify its purpose in stripping Trump of the pardon power. Representatives could go on the legislative record and say that they are voting for the articles with the understanding and goal of stripping the pardon power away, and they could offer supporting documents to this effect. And in its official report Congress can invoke and defend this power.
Even still, it is possible that Trump could try to pardon himself and his allies. Or he could even grant a blanket pardon to the insurrectionists who attacked the U.S. Capitol on Jan. 6. In that case, it would be up to the courts to decide whether to honor those pardons or, consistent with Congress’s will, to allow the criminal justice system to move forward in holding those responsible parties accountable for their crimes against the Constitution and the country.
Corey Brettschneider is a professor of political science at Brown University and the author of “The Oath and the Office: A Guide To The Constitution For Future Presidents.” He is also the editor of “On Impeachment: The Presidency On Trial.”
Jeffery K. Tulis is a professor of government at the University of Texas at Austin and the author of “The Rhetorical Presidency.”