Progressive cover for August/September 2017

In the new issue of the Madison-based Progressive magazine, John Nichols makes the case — grounded in history and contemporary concerns about obstruction of justice — for the impeachment of Donald Trump. 

Donald Trump is suddenly enthusiastic about one of the more obscure powers associated with the presidency. The Constitution says that the executive “shall have Power to grant Reprieves and Pardons for Offenses against the United States ..."

Trump is now reading the phrase in the broadest possible sense, claiming in a Saturday morning tweet: "While all agree the U.S. President has the complete power to pardon ..."

Actually, all do not agree. Trump's Nixonian turn has opened up a robust debate about whether a president — especially a president plagued by the sort of scandals that swirl around this White House — could pardon himself. After the Washington Post reported Friday that the president might be considering just such an abuse of power, University of Michigan Law School professor Richard Primus wrote: "A self-pardon would be something new in American history — and just the kind of departure from prior norms that typifies Trump. The Constitution doesn’t specify whether the president can pardon himself, and no court has ever ruled on the issue, because no president has ever been brazen enough to try it. Among constitutional lawyers, the dominant (though not unanimous) answer is 'no,' in part because letting any person exempt himself from criminal liability would be a fundamental affront to America’s basic rule-of-law values."

"But as a practical matter, it’s not a panel of legal experts that will decide this issue," Primus explained in a primer that appeared on the Politico website. "It probably won’t be a court, either. Instead, the answer will be fought out at the highest levels of American politics. And in real life, if the president signed a document with the words 'I pardon myself' — which he certainly could — it’s impossible to know what would happen next."

Actually, it is quite possible to know what should happen next.

The framers of the Constitution were clear about that.

The full section of the Constitution dealing with the pardon power — Article II, Section 2, Clause 1 — declares that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

In other words, a lawless president can't pardon himself out of impeachment. That's because impeachment is not a legal act, it's a political act.

The power to impeach a president (or a vice president, or an attorney general) rests with the U.S. House of Representatives. If the House impeaches a president, he is tried by the Senate. If convicted, the president is removed from office.

No pardon can interrupt the process.

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No pardon can reverse the Senate's decision.

Donald Trump may abuse the pardon process — with an attempted self-pardon, or with a pardon of his son, or his son-in-law, or his attorney general. Theoretically, those pardons could undermine investigations and thwart prosecutions.

But they cannot prevent impeachment.

Indeed, a president who abuses the pardon power authors an article of impeachment against himself. 

John Nichols is associate editor of The Capital Times. jnichols@madison.com and @NicholsUprising

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Associate Editor of the Cap Times