With the recent developments concerning the impeachment of Donald Trump, what better time for a refresher course in Constitutional Law and the parameters surrounding the process of impeachment, and the validity of the President’s claim that he would simply pardon himself if he were to be impeached. We’re here to unpack all of it . . . right here in the Blink Tank.
Article One of the U.S. Constitution gives the House of Representatives the sole power of impeachment and the Senate the sole power to try impeachments of officers of the U.S. federal government. (most State constitutions include similar measures, allowing the state legislature to impeach the governor or other officials of the state government.) From a more practical perspective, the House serves as a Grand Jury; they essentially vote on a determination as to whether there is sufficient evidence and probable cause to proceed with impeachment proceedings (“Articles of Impeachment”), i.e. whether or not the Defendant should be indicted based on the strength of the evidence pertaining to their alleged crimes.
Curiously enough, the House of Representatives has initiated impeachment proceedings only 64 times since 1789; and only 19 of those actually resulted in the House’s passing Articles of Impeachment, of which only eight (8) of actually resulted in removal from office – and ALL were federal judges. You may be asking why a Federal Judge would be subject to constitutional impeachment. Unlike State court judges, Federal Judges are the recipients of a lifetime appointment, and the purpose for granting them a lifetime appointment is to encourage Federal Judges to rule impartially and unbiased by not subjecting them to the rigors and inherent political pressures of having to run for re-election, which State court Judges must do repeatedly to retain their elected position. Consequently; when a Federal Judge has committed an offense, the Government cannot rely on the next election cycle to democratically remove them from the bench, impeachment is the necessary and appropriate means of removing them from office.
Once the House has voted to affirmatively to move forward with impeachment proceedings, it is the Senate that then serves as the Jury during the “trial” phase of the impeachment process. It is here that the impeachment proceedings mirror that of an actual public trial. Members of the Senate will preside over the matter, and both respective sides will put on their case-in-chief where they call witnesses, give testimony, and submit evidence in support of their position. Ultimately; however, impeachment requires a 2/3rd Senate majority vote in favor of impeachment. With regards to the current impeachment of Donald Trump, it is quite clear from the outset that the Republican-controlled Senate will not allow the President to be impeached, and the Democratic-led crusade to see the President impeached is little more than saber rattling and political grandstanding that is calculated to fail, and purely to appease their own constituents.
Prior to Donald Trump, two (2) United States Presidents have been impeached. Tennessee’s Andrew Johnson was sworn in as Vice President in 1865 and 6 weeks later he immediately took office following the assassination of Abraham Lincoln. Johnson’s legacy was that of a renowned Stateman with excellent international diplomacy – which was pivotal in The Alaska Purchase where America procured Alaska from the Russian Empire in 1867. Johnson was impeached in 1868 when Congress passed legislation preventing the President from dismissing members of his cabinet, and Johnson persisted with firing his Secretary of War. Arkansas’ Bill Clinton was impeached in 1998 as a result of the Monica Lewinsky scandal where the President lied to the Senate Committee investigating the matter. Both Presidents were eventually acquitted by the Senate, and no U.S. President has ever been fully impeached and/or removed from office. Because impeachment ultimately requires a 2/3rd Senate vote, they are unlikely to prevail and have understandably never occurred in the history of the United States.
There were efforts to impeach John Tyler – although formal proceedings were never initiated – and in the wake of the Watergate Scandal, President Richard Nixon actually resigned in 1974 immediately after the release of the “smoking gun” tapes, which clearly established the President’s involvement and cover-up efforts in Watergate. Nixon gave up the struggle to remain in office, resigning from the presidency on August 9, 1974, before the House could vote on the articles of impeachment. It is widely accepted that had Nixon not resigned from office, then he would have undoubtedly been impeached by both the House and the Senate for his criminal acts. Famously, or infamously rather, it was the newly sworn-in President Gerald Ford who eventually pardoned Richard Nixon following his resignation, and many historians believe that his decision to do so – and allowing his political ally and old personal friend to escape justice and circumvent punishment for his nefarious crimes — single handedly led to Democrat Jimmy Carter defeating the incumbent Gerald Ford in the following election. Americans, it seems, have consistently voted with their middle finger in elections, a proud tradition that continues to this day. Similarly, many of the same machinations surrounding Watergate have resurfaced in the current impeachment of Donald Trump, and the question remains: If impeached, can a President then pardon himself?
Donald Trump usually takes to Twitter when directly addressing his 63 million followers, and it was in a tweet of his in the past few months where President Trump summarily dismissed any rumors of a potential impeachment with a promise that if he were impeached by the Senate, then as President of the United States, and as its Commander-in-Chief, he has the express authority to pardon himself, an enumerated power which he would clearly invoke if necessary. If there’s nothing else that you take away from today’s discussion, please remember to NEVER — under any circumstances — EVER take legal advice from Donald Trump; or from Twitter for that matter. While there are no Constitutional provisions expressly granting or denying the President authority to pardon himself, there are pretentious Constitutional scholars in tweed jackets all across this great nation, vigorously steeping their Earl Grey tea at this very moment, but who are nonetheless divided on this polarizing topic of debate. Their subjective opinions can be found in overly verbose Facebook posts and from mining unread WordPress blogs, but you dear reader are entirely too smart and well-informed for that chicanery. You visit the Blink Tank for concise and definitive answers, and you shall have them, poste haste!
Article 2 Section 2 of the U.S. Constitution contains a unique provision that grants the President of the United States the exclusive power to grant pardons and reprieve for crimes committed against the United States. Thus, the President can pardon any Federal crimes while State Governors have congruent powers and authority to grant pardons for any State crimes. Donald Trump clearly has the power to grant Federal pardons, but can he pardon himself?
Interestingly enough, while still in Office — and at the height of the metastasizing Watergate Scandal of 1974 – President Richard Nixon actually wrote to his own acting Assistant Attorney General, Mary C. Lawton, (who was a brilliant attorney and highly respected) requesting her formal legal opinion on the issue of whether he – as President of the United States – had the Constitutional authority to pardon himself. This is common practice in executive administrations, where Presidents will often consult with Attorneys General on the legality of potential actions they would like to take. In a Legal Brief dated August 5th, 1974, which was prepared by the Office of Legal Counsel, Lawton specifically concluded that “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Lawton ultimately determined that Nixon could not use his own presidential pardon power in order to protect himself from prosecution. Acting on the sound advice of his Counsel, the disgraced Nixon resigned from office just four days later in order to avoid impeachment.
This decades-old memo still holds the same significance, as yet another president is ensnared in a criminal investigation and considering a self-pardon in the 11th hour. The important distinction to make in Donald Trumps impeachment; however, is that Nixon resigned BEFORE the House had impeached him. Trump now finds himself at the mercy of the Republican-held Senate. It would appear that Trump will ultimately be bound by the Senate’s decision, and despite all of his tremendous efforts and perfect phone calls, he will not have the option to self-pardon.