Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Friday January 15, 2021
Can President Trump issue pardons while impeached? Experts at odds
With just days left before the end of U.S. President Donald Trump’s presidency, the House of Representatives voted to impeach Trump for a historic second time Wednesday, citing “incitement of insurrection” after a mob of supporters stormed the U.S. Capitol one week ago.
At the same time, the FBI has been making arrests across the country relating to the riots, prompting some to wonder whether Trump would try to squeeze in more pardons before his term is up, including pardoning his supporters, his family, and even himself.
Trump’s presidency has raised legal questions around pardons previously never tested in federal courts: the constitutionality of a self-pardon, for example, remains unclear since no president had ever attempted it before, with legal scholars divided on how to interpret the law.
Does Trump’s impeachment change anything when it comes to issuing pardons?
In Article II, Section 2 of the U.S. Constitution, it states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
But legal experts appear divided in what the clause “except in cases of impeachment” means.
“The conventional wisdom and centuries of treatises and textbooks tell us that when the Constitution says that the president can pardon ‘except in cases of impeachment’ means that the criminal process and the impeachment process are separate, and the president can only pardon crimes,” Brian Kalt, an expert on constitutional law and presidential history, and a law professor at Michigan State University, told CTVNews.ca in an email.
“He can’t stop an impeachment or undo an impeachment conviction, but he can still pardon any related crimes.”
With the House voting 232-197 to impeach the president, a two-thirds majority is still needed in the Senate in order to convict and remove Trump, the only U.S. president ever to be impeached twice. But the earliest a Senate trial would begin is next Tuesday, right before president-elect Joe Biden’s inauguration.
Kalt explains that Trump retains all of his powers until he is convicted or his term ends, meaning, “he can still issue pardons — whether related to his impeachment or not — while he is impeached.”
Kalt noted that former president Bill Clinton pardoned 34 people between his impeachment on Dec 19, 1998 and his acquittal on Feb 12, 1999.
“Nobody batted an eye at that because, again, the standard reading of the impeachment exception to the pardon power … is uniformly understood and accepted.”
Based on Clinton’s example, Trump could still issue pardons during his final week in office. Prior to his impeachment, he had already discussed issuing pardons for himself and his children, according to a CNN report this week, citing multiple sources. The report noted Trump, his allies and family members who partipated in the rally at the Capitol could potentially face legal exposure following the riots.
Trump could, in theory, issue a blanket pardon that covers himself and his children up until the time he leaves office, according to CNN’s source. Another source indicated that Trump may extend it to others outside the family as well, including Trump’s personal lawyer, Rudy Giuliani.
Already Trump’s previous pardons — which have included four American men convicted of killing Iraqi civilians, his former campaign manager Paul Manafort, ex-adviser Roger Stone, and his son-in-law’s father, Charles Kushner — have generated enormous outrage. (CTV)