If Reich Is Correct

The first clause of Section 2 of Article II of the United States Constitution concludes with the following words: “… he [the president] shall have powers to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Former Labor Secretary Robert Reich wrote a piece entitled If Impeached by the House, Trump is Literally Unpardonable for Newsweek on December 2nd. Juxtapose those and you have the basis of a very interesting article. Let’s explore.    

Professor Reich made three cases for impeachment; today I will only deal with the one in the title of the article. Reich, a Yale Law grad, contends that if the House impeaches Trump – regardless of what happens after that – that Trump is not eligible for a presidential pardon.

One of the issues brought up in this discussion is Trump self-pardoning. There is no legal precedent for that; in fact to my knowledge it has never even come up before. There is nothing specific in this constitutional clause (the only one dealing with pardon powers) but that would go against the American constitutional principle that no person is above the law. That was clearly the Founders’ intent.

For those of you harkening back to Gerald Ford’s pardon of Richard Nixon remember that Nixon resigned prior to the House impeaching him. Technically Nixon was not impeached.

If nothing else Trump is a throw some against the wall and see if it sticks guy who has absolutely no respect for the law very much including the Constitution. I would not be surprised for him to try a self-pardon. It would be the darkest day in Supreme Court history if they upheld the constitutionality of a self-pardon!

A pardon by a subsequent president post impeachment is a different issue. Much would matter on how the majority of the justices interpreted the words, “In cases of impeachment.” If you interpreted it as Reich has to mean that once the offender had been impeached the president no long could pardon them (assuming there were underlying criminal offense(s) involved as there are certain to be in the case of Trump) then the act of impeachment itself preclude that action.

If I had to argue Trump’s side I would contend that the Constitution only prevented a president from pardoning someone in the avoidance of impeachment. It’s not much of an argument but neither were arguments like absolute immunity.

In a risk/reward decision I was among the progressives who were late to the table to call for impeachment because I feared it would not lead to Trump’s removal from office. Trump finally pushed things too far and the moral case became compelling regardless of the repercussions. Reich’s argument provides another reason for the House to impeach regardless of what happens afterwards. It may be wishful thinking on my part but I tend to agree with Reich.

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