January 21, 2021
It was no shock that former President Trump exercised his pardon power in the final hours of his Presidency. Bill Clinton famously — and furiously — issued 140 pardons on his last day in office and, more recently, Barack Obama issued 64 in his final day.
But, are the Trump pardons, well… legal?
I ask this because there’s a funny provision in the constitution which may have deprived Trump of the pardon power.
I am speaking, of course, of Article II, Section 2 of the U.S. Constitution. It provides, in pertinent part, that “The President… shall have the power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” (Added emphasis).
While some have suggested that this means that a President can’t pardon himself for impeachable offenses, isn’t it more consonant with an interpretation of the constitution’s delegation of executive power that the clause removes from the President the power to pardon when he is being impeached? Historically, this makes sense: the framers may have been concerned that an impeached President would pardon his co-conspirators and other cronies before being convicted in the Senate.
As it happens, the House has approved a resolution impeaching the President, so this is clearly a “case of impeachment.” A fair reading of Article II, Section 2 would suggest that the President’s pardon power was removed as soon as the resolution was approved.
I’m not sure who would have standing to challenge any of the pardons, but it may be that they have no constitutional validity.