Sunday, January 10, 2021

The Traditional Interpretation of the Pardon Power is Wrong. And a reply to a critic.

Corey Brettschneider

Jeff Tulis and I have written a piece about why the traditional interpretation of the "except in case of impeachment" exception to the pardon power is mistaken. I am posting here a preview of the piece and a reply to a critic. 

The piece is here:

Here is a preview

The power to grant “pardons and reprieves” includes the power to commute, or reduce, sentences after convictions. But this power is constrained by a limit: “except in cases of impeachment.” Traditionally, this exception has been read to mean only that a president cannot use the pardon and reprieve power to prevent or undo an impeachment by the House or an impeachment conviction by the Senate. By this interpretation, only impeachment charges themselves are precluded from presidential pardons. (According to the Constitution, the vice president and “all civil Officers of the United States” are subject to impeachment, which means, for example, that a president cannot pardon a federal judge’s impeachment.)

But there is a strong argument, rooted in the Constitution’s text, history, values, and structure, that in addition to banning the prevention or undoing of an impeachment, this phrase also bans a president from using the pardon and reprieve power to commute the sentences of people directly associated with any impeachment charges against him. This argument is not a partisan one. Whatever rule is applied today would necessarily apply to future presidents, Democrats as well as Republicans.

I hope people read our article and Brian Kalt's piece criticizing our view:

As you consider the debate, I'd point a few things out in framing the argument.

First, it's important to see the kind of argument we are making against the traditional view. We are not denying that there is evidence for the traditional view. We are saying that the historical evidence for the traditional view is far from certain and that there is evidence for our view too. We think that on balance we have the better historical evidence, but our main point is that there is enough doubt that we should turn to the structure of Article II and the values of the Constitution to interpret the impeachment exception given the historical uncertainty.  The Supreme Court has relied on such sources sometimes even when they conflict with the text of the Constitution (11th Amendment sovereign immunity) or are absent from it (privacy). But here the text and history provide support for our view. Certainly, it's linguistically possible to read it our way. Values and structure support it. History doesn't preclude it. 

Brian says the historical evidence "is clear enough to bolster the traditional view of the text."  We disagree. I'm not even sure what kind of standard "clear enough" is meant to be. What Brian offers is not enough to overturn a reading that would cohere with the basic structure and values of Article II. And we don't think that his "inter-textual" formalistic arguments overcome the structure and values arguments either. 

It's important to see that the historical evidence is complex and far from obvious or straightforward. We don't have a floor speech saying clearly what the clause meant. Just to take one example on the day the language was adopted, we have a strange voting sequence. The unanimous adoption of the language "except in cases of impeachment" is followed by a divided vote rejecting the language that would have only prevented the president from stopping impeachment in the Senate. We ask if the convention had just unanimously and unambiguously adopted that limit plus a ban on undoing punishments resulting from impeachment, why would they be voting again and arguing about language that simply restated part of what they had just adopted. in his piece, Brian says they were voting on whether to replace the language just adopted. But why would they do that having just unanimously adopted it? And what were they arguing about? Again, it's far from clear and none of this evidence precludes our view. Of course, much of this is an argument relevant to original intent that might matter to differing degrees when it comes to those who focus more on original public meaning or structure and values. 

Second, the fact that the convention voted down the blanket exception for treason does not disprove the view. Some say the rejection of that exception shows we are wrong to think an impeached president can't pardon himself or those persons related to a "case of impeachment." But the rejection of the blanket exception for treason was a rejection of a broader and distinct limit. In other words, the Framers' decision that the pardon power can sometimes be invoked even for those convicted of treason does not preclude the interpretation of the pardon exception that we defend.  

Brian suggests Randolph's worries about co-conspirators were raised on September 15, the day an exception for treason was rejected, and only appropriate to that day. But I think it's a stretch to claim that the worries were only present on that day. Marx didn't just think that workers of the world should unite on the day he wrote the manifesto. It was a general concern. And we think that Randolph was expressing a concern present in the convention in general. 

Third, the point about members of Congress endorsing the non-traditional view adds an important dimension to this debate we have not previously highlighted. There is obviously disagreement here between Brian on the one hand and Jeff and me on the other. I'd point too to pieces by Lawrence Freeman in the Jurist and Kim Wehle in The Hill weighing in on the non-traditional side. On our view, members of Congress explicitly invoking the power would have weight in this debate since Congress's interpretation of its own powers matters in constitutional law. An explicit claim in the article of impeachment that Trump's power to pardon himself or others related to the insurrection is revoked could make a difference. Of course, some think that Congress can't even limit the pardon power through legislation. But that's precisely what we are discussing. If Tulis and I are correct, they certainly could limit it with or without legislation. But Congress chiming in on our side, as Clyburn has, should have weight. 

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