Your comment about the validity of pardons issued by an impeached president seems misplaced. The pardon clause reads "...and he shall have power to grant reprieves and pardons for offenses against the United States, except in *Cases* of impeachment". [emphasis supplied]. It does not read "in case he is impeached" or words to that effect.
The clause simply means that the president cannot exercise clemency to prevent impeachments (nor their consequent trials) to go forward. This is a permanent, not temporal, limitation on the pardon power.
Judge Story (quoted by you) confirms this by elaborating on the rationale for the bar on impeachments, saying "[b]ut if the power of pardons extended *to* impeachments, it is obvious, that the latter may become wholly inefficient, as a protection against political offenses. [emphasis supplied]. Absent this limitation, Story correctly argues, a president could prevent any political trial, not just his (an impeachment and trial) via a pardon.
The original version of the clause at the convention read "He shall have power to grant reprieves and pardons, but his pardon shall not be pleadable in bar of an impeachment". Put in another way, a person could not assert a pardon as an affirmative defense in an impeachment trial.
This does not seem to suggest the Framers intended a temporal presidential disability in his pardon power, but a permanent one. He cannot pardon impeachments, period.
The current version of the clause would appear to be an awkward way to create the "temporal limit" on the pardon power you suggest. Further, the evil it would seek to cure seems to be discussed nowhere in the convention.
The interpretation you put forward was that argued by Tribe in 1978, and which is now commonly taught in law schools. I agree in part:that this clause _also_ meant that the President could not pardon lesser officers who might themselves face impeachment. However that clause MUST also relate to his own impeachment. Why? One cannot simply follow the older common law arguments. That is because all of that discussion (most clearly articulated by Blackstone in 1769, whom Story cites in 1833) was in one fundamental respect —by definition— imperfect. Why? Because the US Constitution allowed, unlike the British (unwritten) Constitution, that the executive, with the pardon power, could be impeached. The sling could not be impeached. But the pardon power, as the delegates to the Constitutional Convention clearly understood, could negate the president’s own ability to be impeached, if it was vested in him. Therefore any discussion of impeachments in this clause _has to_ include the president’s own: this section could not logically be only about other impeached lesser officers. To read it as you do, and as Tribe did, and has become standard, actually returns us to a vision of executive power that precedes the Constitution, that is like that if a king, who can “do no wrong” under the law, than of the executive in the Constitution, who can be impeached. The discussion about bar to impeachment during the Constitutional Convention, therefore, was about a bar to the president’s impeachment. I read the CC discussion of bar to impeachment as them debating whether the President’s ability to pardon is removed before he has even been formally impeached— that is— whether it is removed when the House has even begun to consider or debate it. They determined, rightly, that such a dramatic limitation, without even a vote to impeach in the house, could allow for nuisance actions by a minority in the House, actions that would unjustifiably impinge on the President’s pardon power before even a vote by the majority of the House to impeach. Feel free to reach out if you would like to discuss more.
Sorry: “king” could not be impeached. That’s what I get for typing on my iPhone!
On that issue I would add that the trial of Charles I, in January of 1649, which led to his execution, was actually an impeachment and then trial in the same House. It was regarded as illegal after the Restoration, and all the members of Parliament who had signed Charles I’s death warrant were themselves tried and executed for their effrontery in trying a king in 1660. My point is this: you can’t limit the Constitution by saying that the President’s own impeachment wouldn’t fit with older common law restrictions on impeachment, or that his ability to pardon should be fully intact when he himself was impeached. That executive was was immune was explicitly rejected. The Constitution was intending to do something new. And Story’s longer discussion—not only on this point, but in general, makes a clear distinction between the monarchy they left behind and the Republican they were creating.
On whether it limited the President’s ability to pardon only himself in case of his own impeachment: look now again at the discussion. The members of the CC were concerned about him pardoning those he conspired with. If you contact me directly I can provide all cites, including to the longer discussion by Story, which fundamentally disagrees with Tribe’s reading.
I'd love to those pardons revoked, but I read it the way as Orlando Gotay
See my replies to Orlando Gotay, below
Your comment about the validity of pardons issued by an impeached president seems misplaced. The pardon clause reads "...and he shall have power to grant reprieves and pardons for offenses against the United States, except in *Cases* of impeachment". [emphasis supplied]. It does not read "in case he is impeached" or words to that effect.
The clause simply means that the president cannot exercise clemency to prevent impeachments (nor their consequent trials) to go forward. This is a permanent, not temporal, limitation on the pardon power.
Judge Story (quoted by you) confirms this by elaborating on the rationale for the bar on impeachments, saying "[b]ut if the power of pardons extended *to* impeachments, it is obvious, that the latter may become wholly inefficient, as a protection against political offenses. [emphasis supplied]. Absent this limitation, Story correctly argues, a president could prevent any political trial, not just his (an impeachment and trial) via a pardon.
The original version of the clause at the convention read "He shall have power to grant reprieves and pardons, but his pardon shall not be pleadable in bar of an impeachment". Put in another way, a person could not assert a pardon as an affirmative defense in an impeachment trial.
This does not seem to suggest the Framers intended a temporal presidential disability in his pardon power, but a permanent one. He cannot pardon impeachments, period.
The current version of the clause would appear to be an awkward way to create the "temporal limit" on the pardon power you suggest. Further, the evil it would seek to cure seems to be discussed nowhere in the convention.
Orlando Gotay
The interpretation you put forward was that argued by Tribe in 1978, and which is now commonly taught in law schools. I agree in part:that this clause _also_ meant that the President could not pardon lesser officers who might themselves face impeachment. However that clause MUST also relate to his own impeachment. Why? One cannot simply follow the older common law arguments. That is because all of that discussion (most clearly articulated by Blackstone in 1769, whom Story cites in 1833) was in one fundamental respect —by definition— imperfect. Why? Because the US Constitution allowed, unlike the British (unwritten) Constitution, that the executive, with the pardon power, could be impeached. The sling could not be impeached. But the pardon power, as the delegates to the Constitutional Convention clearly understood, could negate the president’s own ability to be impeached, if it was vested in him. Therefore any discussion of impeachments in this clause _has to_ include the president’s own: this section could not logically be only about other impeached lesser officers. To read it as you do, and as Tribe did, and has become standard, actually returns us to a vision of executive power that precedes the Constitution, that is like that if a king, who can “do no wrong” under the law, than of the executive in the Constitution, who can be impeached. The discussion about bar to impeachment during the Constitutional Convention, therefore, was about a bar to the president’s impeachment. I read the CC discussion of bar to impeachment as them debating whether the President’s ability to pardon is removed before he has even been formally impeached— that is— whether it is removed when the House has even begun to consider or debate it. They determined, rightly, that such a dramatic limitation, without even a vote to impeach in the house, could allow for nuisance actions by a minority in the House, actions that would unjustifiably impinge on the President’s pardon power before even a vote by the majority of the House to impeach. Feel free to reach out if you would like to discuss more.
Sorry: “king” could not be impeached. That’s what I get for typing on my iPhone!
On that issue I would add that the trial of Charles I, in January of 1649, which led to his execution, was actually an impeachment and then trial in the same House. It was regarded as illegal after the Restoration, and all the members of Parliament who had signed Charles I’s death warrant were themselves tried and executed for their effrontery in trying a king in 1660. My point is this: you can’t limit the Constitution by saying that the President’s own impeachment wouldn’t fit with older common law restrictions on impeachment, or that his ability to pardon should be fully intact when he himself was impeached. That executive was was immune was explicitly rejected. The Constitution was intending to do something new. And Story’s longer discussion—not only on this point, but in general, makes a clear distinction between the monarchy they left behind and the Republican they were creating.
On whether it limited the President’s ability to pardon only himself in case of his own impeachment: look now again at the discussion. The members of the CC were concerned about him pardoning those he conspired with. If you contact me directly I can provide all cites, including to the longer discussion by Story, which fundamentally disagrees with Tribe’s reading.