Random Thoughts – Randocity!

The United States Constitution has very specific language defining how and when the Presidential power of pardons and reprieves can and cannot be used. Let’s explore.

Constitutional Language

From Article II, Section 2, here is the language that defines the President’s powers. Note, styles have been added for clarification purposes.

 

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

U.S. Constitution => Article II => Section 2

 

At the end of this paragraph, we have an exception to and limitation of the previous power, “grant reprieves and pardons”. Some might argue that this exception covers the entire paragraph describing his powers as a whole, but this exception immediately follows the definition of the President’s aforementioned “grant reprieves and pardons” power. While the exception may cover all of his power in a logical sense after full impeachment AND conviction and having been removed from power, it doesn’t make sense to cover all of his powers while he still holds office after impeachment, but before the trial. He must still remain commander in chief of the Army and Navy of the United States, for example.

Instead, I believe that this specific language, because it appears directly after the “grant reprieves and pardons” language is intended to narrowly apply solely to the power of granting reprieves and pardons, not to the entire paragraph.

Logically, this interpretation makes the most sense because you wouldn’t want a President who is in the process of being impeached to flurry pardon both himself and those who might have been involved, thus nullifying the entire impeachment proceeding. Meaning, the power given to Congress to impeach the President must not be allowed a loophole by the President to avoid impeachment.

Trump’s Pardons and Reprieves

While the language of the constitution is clear on what powers the President has, it has exclusions when specific powers are unavailable to the President as defined just above.

Let’s examine Trump’s flurry of pardons on the way out of office. Because of the way the constitution language is written, it seems that Trump’s final flurry of reprieves and pardons on the way out, but which occurred after his second impeachment on January 13, 2021 may not be constitutionally valid or legal. According to the constitution, the President forfeits the power of reprieves and pardons “in cases of impeachment” or, more specifically, during impeachment proceedings.

One can argue that Trump lost this power during his first impeachment. He did. However, that impeachment ended in acquittal… thus restoring all powers to him that he would have lost between the House’s impeachment, but before the Senate trial concluded in acquittal. If he had made any pardons during that impeachment period in 2019, those would also be constitutionally invalid.

Our Framers’ Logic

The framers of the constitution would have logically understood the impeachment process fully. After all, they designed it. The framers understood that impeachment is a two step process requiring both the House and the Senate to participate. They also understood that because these two houses must work together to complete the process, there could be delays between the time the House approves their impeachment resolution and the time the Senate begins and concludes the impeachment trial.

These same framers also understood that because of the time required to complete the impeachment process in full, the President could use his power of pardons and reprieves to nullify the very reason for the impeachment itself. To avoid this design flaw in the process, the framers included the clause ‘except in cases of impeachment‘ to limit the use of this Presidential power during impeachment proceedings and thus avoid the possibility the President could pardon himself or others and nullify the entire impeachment.

Legal vs Illegal Pardons

The point to all of this is that President Trump, at the time before he left office, was still under impeachment proceedings. This clause in the constitution would then suspend Trump’s power of reprieves and pardons until the impeachment had reached full conclusion: acquittal or conviction.

Because Trump’s impeachment is still ongoing as of this article (and was at the time of his exit from office), any reprieves and pardons he signed after the House passed its Article of Impeachment would be constitutionally illegal and thus, null and void.

If Trump had remained in office after conclusion of the Senate’s impeachment trial AND if the trial resulted in his acquittal, his power of reprieves and pardons would be restored. He could have then reissued those reprieves and pardons to make each of them legal and valid. However, Trump is no longer President as his term has ended. His ability to reissue those reprieves and pardons has ended. This means that all of the reprieves and pardons that Trump issued after January 13th, 2021 are constitutionally invalid and must remain invalid in perpetuity.

President Joe Biden, the now current President, could reinstate those reprieves and pardons on Trump’s behalf if he so chooses, but that would require Joe Biden to agree to reissue those specific reprieves and pardons on behalf of Donald Trump.

↩︎