The Constitution and the Framers sought to Protect the Republic from a Pardon Scenario like this.
Speculation that President Trump might Pardon Roger Stone has reached a fever pitch after Stone’s Sentencing by a Federal Judge and the President’s Repeated Hints that he thinks the Verdict Unfair. But fortunately, the Constitution’s Framers imagined this Nightmare Scenario, a Suspected Criminal President Pardoning a Co-Conspirator, and they put in the Constitution Language to Legally Prohibit the Pardon Power in exactly this kind of Case.
Some Scholars agree that once a President has been Impeached, they Lose the Power to Pardon Anyone for Criminal Offenses connected to the Articles of Impeachment. Less noticed is that even after the Senate’s Failure to Convict the President, they do Not Regain this Power.
Under Article II, Section II of the Constitution, the President is given the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” Pardons are supposed to be used as Acts of Mercy. The Framers thought of the Pardon Power as a “benign prerogative”, Prerogative because it was mostly Unchecked by Courts or Congress, but Benign because Presidents would use it for the Public good.
But the Framers knew Not to Place Blind Trust in the President to wield the Power Justly. That’s why they Explicitly Forbade a President from Exercising the Pardon Power in “cases of impeachment.” The Clause Prevents the Worst Abuse of the Pardon Power: a President’s Protecting Cronies who have been Convicted of Crimes related to the President’s own Wrongdoing.
This Danger of a President using the Pardon Power to Excuse their Crimes was discussed by George Mason at the 1788 Virginia Ratifying Convention, where Delegates Debated whether to Adopt the Document that had been Drafted in Philadelphia. Mason thought the Danger of the Pardon was so great that it was among the Reasons he argued the Constitution should Not be Ratified, and why he Refused to Sign the Document. “The President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”
Defenders of the Constitution knew they needed a Robust Response to the Danger of a President’s Abusing the Pardon to Protect Co-Conspirators. James Madison, a Primary Author of the Constitution, argued in reply to Mason that such Pardons were Barred by the Constitution as already written. He pointed to the Protection already in the Constitution: No President could Pardon Co-Conspirators. “If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter himself; the House of Representatives can impeach him,” Madison responded to Mason. “[T]hey can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the vice-president.”
Here Madison provides Evidence that the intent of the Framers was to Limit the Pardon Power from being Extended to a President who wanted to use it to Pardon Co-Conspirators. His Remarks are a Guide to how we should Interpret the Limit explicitly written into the Constitution when it comes to Cases of Impeachment: It Strips a President of the Power to use a Pardon to “shelter” anyone “connected in any suspicious manner” way with the President’s Alleged High Crimes and Misdemeanors.
Stone was Convicted on Seven Criminal Counts centered around Allegations that he had Lied to Congress during his September 2017 Testimony to the House Intelligence Committee as part of the Mueller Investigation. The Investigation of Stone relates to the Charges that the President Abused Power by Soliciting Foreign Intervention into our Election and that he Obstructed Justice in trying to Hide that “high crime and misdemeanor.” The Best Evidence that Stone is Tied to those Charges is his own Self-Described Role as a Protector of the President. “I will never roll on [Trump],” Stone Declared in One of many Statements. That makes him exactly the Type of Person Madison had Envisioned while Limiting the President’s Pardon Power.
It is true that the Stone Investigation concerned Russian Involvement in the Election and that the House Charges Focused on the more recent Ukraine Accusation. But the Articles of Impeachment focused on the Accusation of “abuse of power,” and it is that General High Crime at Play in Ukraine and elsewhere that Links the Impeachment and Stone.
Inevitably, some will Argue that an Impeached President should Regain the Power to Grant Clemency to his Alleged Co-Conspirators in Cases of Acquittal by the Senate. That Ignores not only the Framers’ Clear Intent, but also the Plain Text of the Constitution.
The Framers deliberately used the Phrase “cases of impeachment,” not “conviction.” One reason why is simple: A President Convicted by the Senate would be Removed from Office, and thus Unable to Pardon anyone. As such, there would be No Reason for the Constitution to Curb a Convicted President’s Pardon Power.
If the President attempts to Pardon Stone, his Own Lawyers and those in the Department of Justice should Inform him that such a Pardon would Exceed his Powers as President. If Trump’s Lawyers and Advisers Fail to Stop him, and the President moves ahead with a Pardon for Stone, it is incumbent upon any Judge asked to Enforce that Pardon to Deny it on Constitutional Grounds.
The Supreme Court has never Ruled on the meaning of the Impeachment Exception to the Pardon Power because such a Pardon of a Co-Conspirator by a President who has been Impeached is Unprecedented. But the need to Stop it is dire. Otherwise, the Original Purpose of the Pardon Power, to show Mercy to Others, will be turned on its head. Instead, the Pardon Power will be Converted into a Self-Serving Tool of an Aspiring Despot, precisely the Danger Mason Warned Against.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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