In several recent posts, I have made and amplified on the case that Mr. Trump’s pardon of former sheriff Joe Arpaio is an impeachable offense. Some commenters here and on other forums stoutly resist the idea that any exercise of the pardon power can be an impeachable offense. They insist that, because Article II, Section 2 of the constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” then this textual grant of the pardon power makes the president immune from impeachment for its misuse.
In a previous post, I explained why, as a matter of constitutional logic, this position is wrong. Put simply, the impeachment clauses were inserted into the constitution precisely in order to provide a constitutional remedy for misuse of constitutionally granted powers. Merely because an official act is within the scope of the official’s constitutional power does not deprive the nation of a remedy for misuse of that power. And sometimes the remedy for misuse of the conceded power is not reversal of the particular official act, but removal of the official – impeachment. For example, if a judge dismisses criminal charges against a defendant after jeopardy has attached, even if he does so groundlessly, whimsically, even insanely, the double jeopardy clause prohibits retrying the defendant. There is no remedy for outraged justice in the particular case. But the judge can plainly be impeached for this behavior. Presidential pardons are no different. Once issued, they cannot be negated. But if the pardon offends constitutional values, the president can be impeached for issuing it.
I am hoping that folks unpersuaded by this logic, folks who think that, as several commenters have put it with varying degrees of politeness, that I’m just “making stuff up,” might be persuaded by James Madison, the principal architect of the constitution’s scheme of inter-branch checks and balances.
During the Virginia ratifying convention for the federal constitution, George Mason expressed concern about the breadth of the pardon clause and indeed about the very idea of giving pardon power to the president. In language some may find eerily prescient of the current moment, he said:
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?
James Madison responded:
There is one security in this case [a misuse of the pardon power by the president] 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.
In short, Madison said that the remedy for presidential misuse of the pardon power was impeachment. I stand with Madison.
For those interested, the exchange can be found at http://teachingamericanhistory.org/ratification/elliot/vol3/june18/