by RonK, Seattle
"The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT."
That's Alexander Hamilton, as Publius in Federalist No. 69, SHOUTING across the centuries. Whenever he pens this phrase or its variants, he SHOUTS, i.e., capitalizes for emphasis. What is he trying to tell us?
Steeped in traditions of English and Colonial law, the powers of Pardon and Impeachment were indispensable to the Framers' scheme for economizing virtue in public men. Indispensable powers -- but where to vest them?
Hamilton and his contemporaries plumbed many extant models for strengths and vulnerabilities.
...the executive ... is to be vested in a single magistrate ... if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.
And they fretted over problems of tyranny, faction, conspiracy, insurrection, betrayal and bargaining.
The governor of New York may pardon in all cases ... If a governor of New York, therefore, should be at the head of any such conspiracy ... he could insure his accomplices and adherents an entire impunity.
In the end, they settled on particulars of language and logic whose intended application may be broader than commonly understood. Maybe this is why Publius is SHOUTING at us.
In what follows, for brevity, please read "impeachment" in the (inaccurate) colloquial sense of "impeachment and conviction". [UPDATE: Text below has been adjusted per teacherken's note that removal and disqualification are separable judgments.]
We'll open up with a routine warm-up toss.
Impeachment is not just for Presidents.
Article II, Section 4 renders "The President, Vice President and all civil officers of the United States" susceptible to impeachment.
Who are these civil officers? An early precedent excludes Members of Congress -- removable by their own respective bodies. Past practice affirmatively includes judges and cabinet officials. And there's a sturdy originalist case for stretching this envelope.
Would a subcabinet official -- like former Asst. Sec. of State Elliott Abrams -- qualify? How about a "Senior Administration Official" who does not require Senate confirmation -- like Vice Presidential Chief of Staff Scooter Libby? Is an independent agency head -- like CPB's Kenneth Tomlinson -- a qualified "civil officer"?
Impeachment extends beyond removal from office.
It has never been done, but in theory an officer could An officer can be impeached even after leaving office. (Governors of Delaware and Virginia could be impeached only after leaving office.) It follows that "impeachment" was conceived as more than just a lever to break a corrupt official's white-knuckle grip on the big desk. [Correction: It has been done, in the case of Secretary of War Wm. Belknap (1876), who resigned as the House proceeded to a vote. Good general reference Q&A here.]
Impeached officers can be barred from "any office of honor, trust, or profit under the United States". An impeached Bill Clinton, for instance, could not have been credentialed for goodwill missions to tsunami-land. Impeachment held the prospect of a political "death penalty", a lifetime ban ... and possibly more.
A presidential pardon does not impede an impeachment.
This seems clear enough. In contrast to the Governor of New York, our POTUS "... though he may even pardon treason ... could shelter no offender, in any degree, from the effects of impeachment".
In theory, a pardoned official can still be impeached.
Consider the Iran-Contra conspirators drummed out of the Reagan administration, and pardoned at the close of Bush41's tenure. If Congress had proceeded to impeach and disqualify those already convicted (or whose investigations and prosecutions were derailed by the pardons), Elliott Abrams could never have signed on with Bush43 as "Deputy Assistant to the President and Deputy National Security Advisor for Global Democracy Strategy" ... and the globe might consequently be safer for democracy.
Now to the Big Question: Does impeachment override a presidential pardon?
I dunno. I am not a lawyer, much less an eminent constitutional scholar ... but does not our friend Publius drop broad hints in the affirmative?
Why else would he so pointedly contrast the abuse-prone New York model with the new, improved US model? Why does he shout incessantly at the mention of Pardon?
He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT
And reconsider this quote, with my emphasis added. The President "could shelter no offender, in any degree, from the effects of impeachment". Are there "degrees" of removal and prohibition from future office? No. What are there degrees of? Infractions, penalties, punishments, judgements and sentences.
The Framers labored mightily to thwart the ambitions of Tyrants without unduly exposing their "Chief Magistrate" to the ravages of Faction. They vested, delineated and circumscribed the various powers with care. Where the Constitution's minimal text is annoyingly nondispositive, they lay out the underlying logic in the Federalist Papers and elsewhere.
Look! The eminent constitutional scholar Ann Coulter unearths a helpful footnote (by James Madison, writing in this instance as Helvidius to Hamilton's Pacificus):
As Nixon discovered, the president's obligations go far beyond the requirement that he not criminally obstruct justice. Madison explained, "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." Using the power of the presidency to "pardon crimes which were advised by himself" or to "stop inquiry and prevent detection" of crimes was, according to Madison, an impeachable offense.
The power to exempt one's accomplices from punishment is the kind of loophole a Tyrant could drive a juggernaut through. And recent officeholders have grown bold in granting pardons to subordinates on the way out the door.
What is the scope of the exception in "EXCEPT IN CASES OF IMPEACHMENT"? Do we read it narrowly: "You may pardon them, but we can still impeach them"? Or broadly: "You may pardon them, EXCEPT IN CASE WE IMPEACH THEM"?
I'll leave the topic with a couple of discussion questions.
- Suppose Congress has this power - to trump a pardon with an impeachment. How might an Opposition Party apply it in today's context?
- Suppose Congress has not this power. Is it a Framers' technical oversight, crying out for clarifying legislation or Amendment?