Saturday, January 09, 2021

Impeachment and Pardons

Gerard N. Magliocca

Senator McConnell circulated a memo outlining how a second impeachment trial might work. The memo says that it is "unclear" if the Chief Justice must preside over the trial of an ex-President. My sense is that the Senate and the Chief Justice will conclude that he can and should preside. Otherwise, Vice-President Harris would have to preside, which would be problematic for many reasons.

On an unrelated note, I think that the pardons that are forthcoming (especially the ones for the President's family) create a realistic prospect that a constitutional amendment will be proposed by Congress to the States to restrict the pardon power for future Presidents. What form that amendment should take and what its prospects would be in the states are uncertain, but that debate is coming. 

Then there's a possible self-pardon. Here the issue is how to test the validity of a self-pardon in the least troubling way possible. There are creative ways to do that, but let's first see if the self-pardon happens.  


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