Thursday, July 26, 2007

The limit on the pardon power "in cases of impeachment"

The question has been raised in other discussions whether, if a person is impeached by the House, convicted by the Senate and then convicted of the same crime by the courts, they could latter be pardoned. The constitution is unclear on this question. The most relevant section is:

Article II, Section 2:

The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

So the question turns on the meaning of "except in cases of impeachment".

I am far from a constitutional lawyer. In fact, IANAL of any kind. However, it appears that the framers did intend to exclude just the case we've outlined above from the President's pardon power. Against this view one could cite the following. Writing about impeachment

William Rawle, A View of the Constitution of the United States 210--19 1829 (2d ed.)

It is therefore right and proper that the president should be disabled from granting a pardon, and restoring the offender to his former competency; but there is no restraint on his pardoning when a conviction in the common course ensues, for such pardon extends only to the punishment which is then pronounced, and does not affect the sentence of the senate.

So Rawle seems to suggest that while the President can not void the judgement of the Senate, she can pardon any subsequent convictions.

Story give us some perspective on this question:

Joseph Story, Commentaries on the Constitution 3:§§ 1488—98

§ 1495. There is an exception to the power of pardon, that it shall not extend to cases of impeachment, which takes from the president every temptation to abuse it in cases of political and official offences by persons in the public service. The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence, that the president should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. The constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.

Story notes that the reason for the exclusion of pardon power from cases of impeachment is to prevent the president from protecting corrupt individuals. Clearly this impedement would be weakened if the she could prevent judicially imposed penalties for the crimes that were the basis of impeachment. This however, is certainly not conclusive.

Question is fairly well wrapped up however, in the following:

Records of the Federal Convention Document 1

2:411; Journal, 25 Aug.]

It was moved and seconded to insert the words "except in cases of impeachment" after the word "pardons" 2 sect. 10 article

which passed in the affirmative

On the question to agree to the following clause "but his pardon shall not be pleadable in bar [of impeachment]"

it passed in the negative [Ayes--4; noes--6.]

I conclude from this that the president looses all power of pardon over the crimes for which a person is impeached, in all venues, not just in the context of the impeachment and Senate trial and their consequent penalties. I assert that this question turns on the distinction between "the bar" of impeachment, that is in the Senate, and "cases of impeachment". cases of impeachment refers to the facts, or crimes, upon which the impeachment is based. Thus, the founders rejected limiting the effect of a pardon such that it had no bearing on the Senate trial. They went further by asserting that the pardon power did not apply to the cases, that is the crimes, for which a conviction in the Senate occurs.

Update Ronk over at The Next Hurrah has another, interesting discussion of this topoic.

Update 2:

Some additional sources;

George Mason:

You will please, says he, to recollect that removal from office, and future disqualification to hold any office, are the only consequences of conviction on impeachment. Now, I conceive that 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? The case of treason ought, at least, to be excepted. This is a weighty objection with me.

Note that his language around impeachment was adopted while that around treason was not.

Here, Blackstone makes a clear distinction between the pardon powers before and after impeachment using the phrase "in bar of impeachment" to refer to the use of a pardon preventing an impeachment or it's direct consequences and the House of Commons voted that "that a pardon is not pleadable in bar of an impeachment." That is, a pardon can not block impeachment and removal from office. This is precisely the language that was explicitly rejected in favor of the phrase "in cases of impeachment".

George Tucker gives a reading that suggests the crimes can be pardoned but not the consequences of impeachment. However, he does not explain the difference in language used by Parliment vs. that in the US constitution.

William Rawle argues:

Impeachments are generally efforts of the people of that country through their representatives in the house of commons, to obtain redress before a distinct and independent tribunal, for the mal-practices of the great officers of the crown. No pardon previously granted, can shelter the accused from a full inquiry, and thus his misconduct, if substantiated, is developed and exposed to the nation, but after the impeachment has been solemnly heard and determined, it is not understood that the royal grace is further restrained or abridged.

With us, no pardon can be granted either before or after the impeachment; and perhaps, if this mode of trial is retained at all, it is right that the sentence of a guarded and august tribunal, which, as we shall find, is exceedingly limited in the extent of its punishments, should be excepted from the general power of the president to defeat the effect of the condemnation.


Carolyn said...

Good words.

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