President Trump has now been impeached. Does he retain the power to pardon? Presumably, if he does, he could pardon his alleged co-conspirators-Giuliani, Fruman, Mulvaney, etc.-and thus allow them to lie with impunity without regard to the perjury laws.
A 2018 comment by D. W. Buffa on the Brookings site argues that the original intent of the Framers was to suspend the presidential power of pardon during any period in which the president was impeached. (The link to the Brookings original posting is here. Per the previous discussion on this blog concerning possible link-rot, I’ve pdf’d Buffa’s comments and posted them here.)
Buffa argues that the text of Article II, sec.2, wherein the president was given the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment” acts as a bar to the president’s exercise of the pardon power while he is impeached. (Emphasis by Buffa.)
He does not rely merely on the text, however, but goes further and discusses the colloquy between George Mason and James Madison at the Virginia Ratifying Convention. Mason was concerned that:
If [the president] has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?
Madison saw the problem, but believed that the text of the Constitution provided an escape hatch. In responding to Mason, he said:
There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.
Contrary to the conclusion drawn in the Brookings posting is the conclusion set forth in Snopes from Michael McConnell, director of the Constitutional Law Center at Stanford Law School, that “no basis for it whatsoever” exists for the proposition. [pdf of the Snopes posting.]
Buffa’s argument may not carry the day, but McConnell is clearly wrong in asserting that there is “no basis” for the proposition. That said, however, even under the Buffa formulation the House would have to affirmatively vote to suspend Trump’s pardon power and, as yet, has not done so.
Does anyone know of any additional scholarship on this issue?
It would be odd if the House alone had this power, but not to remove. Surely it lies with the whole Congress.
I don’t think it’s so odd. After all, the ability to block pardons during the pendency of an impeachment is a way to ensure that the process can’t be compromised. Further, it supports the proposition that the impeachment process, from the initial House action through a Senate trial, required or, at least allowed, witness testimony. Thus, this underlines the illegitimacy of the Republican efforts to block the presentation of testimony in the Senate.
Whatever the merits of McConnell’s argument, his conclusion is entirely predictable.