Dear Mr. Reich:
Please allow me to introduce myself. My name is Philip Drucker and I am a retired lawyer, Constitutional Law Professor and amateur historian. Recently, I came across an article you had written, Robert Reich: If Impeached by the House, Trump is Literally Unpardonable.
I found it to be of great interest in matters related to the breadth and scope of a successful congressional impeachment proceeding to limit the power of the ExecutiveSpecifically, this part of the Pardon Power in Section II Clause 1:
The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.
It never made sense to me that the Founders intended to leave an impeached but not removed monarch, er, president in office without so much as a hint of punishment, restrictions or restraint on his or her future conduct. I posit this position is anathema to the basic duties of the president as included in Article II Section 3:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
As well as the even more central tenet to our democratic republic that we are a nation not of blood or title, but of law and that no one, not even a president is above the law. If for no other reason that this, we must never let Trump or any other president ever pardon themselves. To do so would be, in effect, to create a tyrant the likes of which there may be no return.
After sufficient research, I completely agree with you on the issue of whether a president, any president, can pardon him/herself, or any other impeached president from the impeachment itself, and any criminal liability that may attach as a result of further prosecution under the laws of the United States of America. They cannot. There is however, and as I suspected, yet another piece to the puzzle that seems to indicate that after impeachment, any other crimes for which the president may be charged with having committed during his/her remaining tenure in office are similarly unpardonable and, hence, will be subject to prosecution for, and if found guilty, appropriate penalties as indicated under the applicable statute(s).
However, for proper authority and guidance, we must look far beyond Ex Parte Garland (1867), a case involving an ex-confederate soldier during the time of Reconstruction, an era generally believed to be a time of Southern forgiveness and unification. How can this case be “settled law” in matters of pardons when it was not challenged for over 100 years, not because of its brilliance, but because there were no other presidential impeachments to which it serve as guidance?
Further, Garland contains no instruction that a sitting president can pardon himself thereby placing him/her above the law. I simply isn’t there and yet somehow turns up again and again as Supreme Court approval for an unlimited Unitary Presidency. This fancy, constitutional sounding term is often employed as a thinly disguised front for the right to anoint an American king in a American monarchy, which in many ways is an abuse of power in and of itself, if employed by the president himself. We must return to an earlier time for guidance and return to the time and place of the American Pardon Power’s historic origins, England.
Without doubt the American Presidential Pardon Power was derived from the royal English Prerogative of Kings. It would also be uncontested prior to the 17th Century, the power to pardon, also referred to as the prerogative of mercy, was unlimited. It was associated with grace and the King’s reflection of the Almighty’s capacity for justice and mercy. Please remember this is a time when the idea of Church and State would have been treated as both treasonous and blasphemous, neither of which would be true today. That is, of course, unless you think he is the chosen one and his orange skin is a result of the holy spirit flowing through him. (You really can’t make this up, can you?)
It is in the late 17th Century when the true inquiry and illuminative history begins. For it was on December 20, 1678 that the House of Commons sought to resolve the conundrum of a royal pardon involving the conviction of Thomas Osborne, Earl of Danby, for treason and other high crimes and misdemeanors, ending in a restriction on the pardon power in matters of impeachment.
Leaving the factual history behind, the impeachment as fascinating as it is, the point being, for the first time, Parliament recognized the King’s pardon as irreconcilable with the notion of “constitutional balance”. Particularly, in connection with a somewhat “rogue” and irresponsible monarch often flaunting the Constitution for less than commendable, usually selfish and often traitorous, reasons. Sound familiar? For the most part, members of Parliament believed the power of impeachment was necessary to establish a better government and that after impeachment it was in the best interest of the King and the Nation, particularly in matters involving High Treason, that this person not remain free. Interestingly, Parliament also worried that the wanton use of pardons would silence all testimony and, thus, suppress the truth of any plot. Interesting to note how little treason, bribery, corruption, high crimes and misdemeanors have changed since the days of King Charles II till the time of King Donald the First, isn’t it?
But it is upon deciding that a restraint on pardons in matters involving impeachment was proper and just, that an ancient restraint on the pardon power comes to light. However, I have not heard it discussed at length, In fact, I’ve not heard it discussed at all. Yet it is, seemingly, extremely relevant to today’s conversation. Namely, that the King could not issue a pardon for any felony that deprived a third party of their right to a legal remedy (recognized by judicial tribunal in 1673). In cases of impeachment, the third party, it turns out, was, in fact, the whole Commons of England. Here, We the People.
If nothing else, here would appear to be, at least, one sound basis for Nixon’s resignation prior to impeachment and, now that our 45th President has been impeached, he cannot pardon himself or can any other president pardon him for any of offenses against the United States, including all criminal acts, if it deprives we, us, the American people, of our right to legal remedy. And most assuredly, those particular acts within the articles of impeachment for which there would certainly be a Due Process argument for maintaining a remedy at law for a third party (that would be us).
In an another eerily similar situation, the House of Commons and the House of Lords clashed and, despite the House of Commons issuing numerous resolutions outlining their obviously stronger position, with Charles hemming and hawing the whole time, no actual legislation could be agreed upon. Although he remained fully pardoned, Danby spent the next five years in the Tower of London. But, as the years crept on, more and more restrictions were placed upon the pardoning power while the deprivation of individual third party rights (the same is true in America as part and parcel of Due Process) is still a valid issue for consideration to this day.
Although more research would be an obvious necessity, Due Process third party remedy rights in America of which plenty comes to mind, I would like to recommend, We the American People, start with a simple question. Are we, or are we not smarter today in America than the good people of 17th Century England? At the moment, that question seems to be open for debate.
In closing, I again take the opportunity to concur with your analysis regarding the limitations placed upon the pardon power in matters involving impeachment. I would further argue that in the best interest of the Country and our “King” although he may not realize it, now impeached, Trump cannot be pardoned, by himself or any other president, for any criminal acts under the applicable Federal Statutes for which he has already been impeached, and in fact for any offense against the United States he may violate during the remainder of his time in office. This being true, regardless of whether he is convicted and removed by the Senate, or not.
Humbly, I submit for your opinion and hope to hear from you shortly. Sources and citations available upon request. Thank you for your consideration.
Did you get your fill of Phil?