With the battle building over the filibuster, there’s another area that cries out for Senate reform: the impeachment process that led to the recent acquittal of Donald Trump.
No senator should be allowed to serve as a “juror” if they’ve benefited from a pardon issued by an impeached president. In this case 12 senators, including 10 Republicans, had sponsored Trump’s last round of pardons, creating the appearance of a conflict of interest and lack of impartiality.
This summary is from the list of Trump pardons distributed by the Trump White House at the time they were granted.
As you can see, Mississippi Republican Roger Wicker was particularly busy, sponsoring three pardons before Trump’s trial, while South Carolina’s Lindsey Graham sponsored two. Their fellow Republicans who also benefited from pardons were Rand Paul of Kentucky; Mike Rounds of South Dakota; Thom Tillis of North Carolina; Martha McSally of Arizona; Mike Lee of Utah; Cindy Hyde-Smith of Mississippi; and Tommy Tuberville of Alabama. Two Democrats, Dianne Feinstein of California and Robert Menendez of New Jersey, also sponsored pardons.
The final vote for conviction in the Senate impeachment trial was 57-43, 10 votes short of the two-thirds majority needed to convict. However, those tainted senators should have been disqualified from voting. This is a case of plain and simple juror tampering.
On the basis of how those senators did vote, the uncompromised result excluding them from the tally would have been 55-33, only four votes shy of the 59 votes needed for conviction. We can ponder whether the dynamic of a Senate trial without the 10 compromised Republican senators (four of whom were in the vanguard of Trump defenders) would have resulted in a conviction. It certainly would have made the possibility of a conviction more likely.
There is another type of pardon that should not be protected: the pardon of Steven Bannon, a potential witness against Trump in the incitement of insurrection case before the Senate. Bannon was a major promoter of the “Big Lie” strategy and a major supporter of the “March for Trump” organization that was a co-sponsor of the January 6 event that led to the insurrection at issue.
Trump should not have been able to use the pardon power to gain the favor of a co-conspirator whose potential testimony might not favor him in the impeachment trial or any subsequent action. That pardon was as dirty as it gets, and now the Biden administration has the opportunity to clean it up.
It seems likely that the only reason for the public pardon of Bannon is that he was already under indictment, and it may well be that Trump, in his final days in office, did set up a series of similar but undisclosed “witness” pardons in order to control his post-presidency litigation risk.
In the contamination of 12 senators and in the pardoning of an apparent co-conspirator in the events of January 6, we can see the corruptive effect of unbridled pardon power at work… all as the members of the Constitutional Convention feared.
The Trump Pardons Are Constitutionally Impermissible
Specifically, Article 2, Section 2, of the Constitution of the United States sets out the pardon power of the president:
The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
For more than 200 years, a very limited “traditional” interpretation of this has been commonplace: A president cannot pardon someone who has been impeached or is in the process of being impeached. But there’s another interpretation.
Correctly understood, Article 2, Section 2, also means that a president who is the object of impeachment may not interfere with their own case by exercising pardon power while their impeachment is pending.
This is what the representatives at the Constitutional Convention sought to address when they chose the impeachment limit to the pardon power.
There is a good reason for this limitation: In 1787, pardon power was understood to present an exceptional and otherwise unbridled opportunity for the corruption of the impeachment process by a holder of the power. That is true today when the president might act to affect the impeachment of others, and is doubly so when the holder of the power and the person impeached are the same.
In terms of the operational functionality of the impeachment process, there are simple and practical reasons why an impeached president should not be permitted to issue pardons: Pardons are too discretionary, too easily used in subterfuge and subversion, and too disruptive to the Senate’s trial process to be allowed to be issued by an impeached president.
For example, a timeout on issuing pardons means that an ongoing trial process will not have to stop and evaluate each pardon for its constitutional validity or its corruptive effect on individual senators.
The controversy over the traditional interpretation is well-explained in a recent article by Jeffrey K. Tulis and Cory Brettschneider. Their conclusion is that the traditional interpretation is wrong and out of step with what James Madison intended.
What It Really Means
Now, we can see the wisdom of the language used by the Founders.
The constitutional prohibition on pardons in this context is an operative feature of the impeachment process that is intended to avoid corrupting a Senate impeachment trial.
It will come as a surprise to many commentators that the president’s pardon power is necessarily off-limits during their impeachment, but in terms of the text’s plain but distinctive language, the historical origin of the exception, the intended protection of the integrity of a Senate trial, and the anti-royalist restraint of individual imperium that is at the heart of the original Constitution, it is an unavoidable imperative.
We can ask: Do those who object (and there may be many) to this constitutionally ordained limitation on the exercise of the pardon power really believe that the members of the Constitutional Convention intentionally set out to empower a president to attempt to foil the Senate trial by abuse of the pardon power?
They do, and they will object because that limited interpretation fits their sense of the Constitution as a narrow legalistic document rather than the constitutive exemplar of the use of the separation of powers to make government work. They will treat this assault on the integrity of the senators and the Senate’s unique role in the active control of official malfeasance as “no big deal.”
The American people, however, have an expectation that relies on a different and practical concept of our constitutional tradition: The constitutional role of the president in respect of the pardon power and the constitutional role of the senators in the impeachment process are pathways to responsibility and personal accountability, not an escape route always at the ready.
Why Now? Why Bother?
The Trump pardons have demonstrated the real risk that can come when a president uses the pardon power to disrupt and subvert his own impeachment.
Contrast the current situation with the December 24,1998, Clinton pardons issued while his impeachment was pending. The difference is that the 1998 Clinton pardons occurred during a “Small Lie” impeachment while the Trump pardons were part of a “Big Lie” impeachment, where a president facing the end of his term after losing a national election tampered with and sought to preclude the operation of the electoral process in order to retain power.
This is the type of situation that the Founders feared.
The Pardon Power Reset
Now that the impeachment process has concluded, it is time for the Biden administration to take stock of the situation and promptly move to rectify Trump’s abuse of the pardon power.
In doing so, President Biden would capture, control, and define Trump’s abuse of the pardon power and be able to set a constitutionally appropriate standard for his and future presidencies.
As for the pardons issued during the impeachment, Biden should declare those pardons illegitimate and unconstitutionally originated and direct that there be a full review and investigation. He should state that this is being done in strict conformance with Article 2, Section 2, and is done for the purpose of protecting the impeachment process from active corruption. He can then advise the recipients to resubmit their applications within 30 days for reconsideration. Biden could then identify those of merit according to his standards and revive them by a new presidential grant of pardon. In this way, the deserving can be rescued.
However, for those pardons that do not meet that standard, no deference need be given, as those pardons are presumptively corrupt seeds deliberately sown that should never flower and, accordingly, are null, void, and unenforceable.
The misuse and abuse of the pardon power during the pendency of the impeachment of Donald J. Trump created and continues to present a situation unique in the history of our nation. Within the tragic circumstances of this moment, Biden will need no small amount of courage if his administration is to carry forward the principles of our Constitution in respect of the express limitation on pardon power and the legitimate requirements for the integrity of the impeachment process.
If that means a fight up to the Supreme Court, there is nothing to fear about not winning there as the present situation is already intolerable. It would be worth it to make the effort to redline the limitations of the pardon power in the case of pardons made during the pendency of a trial of an impeached president.
Now is the time to do it.
Jerome E. Barnett, a graduate of the University of Wisconsin Law School, has practiced law in Chicago and New York City for more than 40 years.
Photo credit: Gage Skidmore / Flickr (CC BY-SA 2.0), Micharl Vadon / Flickr (CC BY-SA 2.0), Gage Skidmore / Flickr (CC BY-SA 2.0), US Senate / Wikimedia, Luigi Novi / Wikimedia (CC BY 3.0), US Senate / Wikimedia, US Senate / Wikimedia, US Senate / Wikimedia, US Senate / Wikimedia, and Gage Skidmore / Flickr (CC BY-SA 2.0).
Related front page panorama photo credit: Adapted by Mathilde Fallot at WhoWhatWhy from Gage Skidmore / Flickr (CC BY-SA 2.0), Michael Vadon / Flickr (CC BY-SA 2.0), Gage Skidmore / Flickr (CC BY-SA 2.0), US Senate / Wikimedia, Luigi Novi / Wikimedia, US Senate / Wikimedia, US Senate / Wikimedia, US Senate / Wikimedia, Matthew Lancaster / Unsplash, Michael Vadon / Flickr (CC BY-SA 2.0), Gage Skidmore / Flickr (CC BY-SA 2.0), US Senate / Wikimedia