We’ve seen a lot of hand-wringing about President Donald Trump’s eleventh-hour marathon of glaringly unethical pardons, but only a little consideration (see here, here, here, here, and here) about whether the Constitution permits them. A decent case can be made that it does not—and that at least some of these pardons can be reversed.
The relevant passage is Article II, Section 2, in the so-called “Commander-in-chief clause.” The president, it says, “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Nobody knows precisely what that means, but Trump has been under impeachment and awaiting Senate trial—for the second time—since Jan. 13.
The most interesting real-life precedent for restricting a president’s right to issue pardons concerns President Andrew Johnson, who in March 1868 became the first of three presidents to be impeached by Congress, and two months later became the first to win Senate acquittal.
In March 1869, Johnson, on his last full day in office, pardoned Jacob and Moses Dupuy, who’d been convicted of defrauding the Internal Revenue Department, and Richard C. Enright, who’d been convicted of conspiracy to defraud the government. On assuming office, Johnson’s successor, President Ulysses Grant, reversed all three by calling back the U.S. marshals out delivering the pardons. A fourth pardon that Grant meant to reverse, to one James F. Martin, was permitted to stand because Martin had it already in hand, according to the late P.S. Ruckman, Jr., a political scientist at Rock Valley College in Rockford, Illinois. Grant’s reversal of Moses Dupuy’s pardon was challenged in court and upheld on the technical grounds that Dupuy never received it. (Ruckman, an expert on presidential pardons, died in 2018 under circumstances too distractingly gruesome and sad to get into here.)
Obviously pardons are no longer delivered on horseback; they’re received instantaneously. Can they still be reversed by a president’s successor? Yes, if the president who issued the pardon was impeached, according to the 1868 revised edition of A Familiar Exposition of the Constitution of the United States, a popular textbook by Supreme Court Associate Justice Joseph Story. If “the power of pardon extended to impeachments,” Story wrote, it could no longer protect “against political offenses. The party accused might be acting under the authority of the President, or be one of his corrupt favorites. It is, therefore, wisely accepted from his general authority.”
The question of a president issuing a pardon to protect himself from incrimination or political embarrassment surfaced in 1992 when President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger 12 days before he was set to go on trial in connection with the Reagan administration’s Iran-contra scandal. Bush had been vice-president under Reagan, and the Weinberger trial was expected to shed light on Bush’s own suspected participation in the scandal. The Weinberger pardon, along with separate pardons to four other participants in Iran-contra, drew howls of outrage in the press. An infuriated Lawrence Walsh, independent counsel for Iran-contra, wrote in his final report that Weinberg’s pardon “marked the first time a President ever pardoned someone in whose trial he might have been called as a witness, because the President was knowledgeable of factual events underlying the case.” But because Bush had never been impeached, no constitutional debate ensued.
Then came Bill Clinton’s pardon to the fugitive financier Marc Rich, who’d fled the U.S. under indictment for racketeering, wire fraud, and various other criminal offenses. Critics said Rich bought his pardon through his ex-wife Denise’s more than $100,000 donation to Hillary Clinton’s 2000 Senate campaign and a $450,000 contribution to the Clinton Library. Unlike Bush, Clinton had been impeached. A Justice Department investigation into the Rich pardon was conducted by a Deputy Attorney General and former U.S. attorney who’d participated in the Rich prosecution. His name was James Comey. Comey concluded, presumably with some regret, that the Rich pardon violated no laws.
What Comey didn’t consider, or consider sufficiently, was whether Clinton’s successor, President George W. Bush, could overturn the Rich pardon regardless of whether Clinton had violated any laws in granting it. We have since had ample opportunity to question the quality (and bemoan the consequences) of Comey’s judgment in other matters. In this instance, Comey ought to have given Bush the option to revoke Rich’s pardon. Bush himself would later demonstrate that a presidential pardon can be revoked by revoking one of his own, “based on information that has subsequently come to light,” including the fact that the recipient’s father had recently donated more than $30,000 to Republican candidates. (Whoops!)
The pardon language in Article II of the Constitution has never attracted the kind of attention it deserves, so there isn’t much legal scholarship to draw on. One way to glean its potential meaning is to consider the debates during the Constitutional Convention in the summer of 1787. These support a broad interpretation of “except in case of impeachment.” The Framers had a deep awareness of monarchical abuses of power, and were entirely familiar with the sort of predicament Trump created in pardoning the likes of Roger Stone, Michael Flynn, and Paul Manafort. Such abuses had been committed by English monarchs, and laws had been created to curb them. Checks on the king’s ability to pardon corrupt ministers had been included, for instance, in the Settlement Act of 1701, which became an essential part of the (unwritten) English constitution. The Framers were also aware of abuses committed by colonial governors.
Edmund Randolph said at the Constitutional Convention that allowing a president to pardon for even for acts of treason “was too great a trust. The president may himself be guilty. The Traytors may be his own instruments.” James Wilson, a delegate for Pennsylvania and later one of the most important interpreters of American law, asserted that if the president “be himself a party to the guilt he can be impeached and prosecuted.” The question of treason is no longer a theoretical one. The House’s Jan. 13 impeachment resolution accuses Trump of committing treason by “inciting violence against the government of the United States.”
The founders were hardly perfect, and many of their original plans have required amendments in the name of justice. But they absolutely understood the potential for corruption, including and especially in whichever person was chosen president. Trump’s pardons of those who may have conspired with him to subvert the balance of power, to commit corruption, and potentially to overturn the republic, represent exactly what they feared most.
This piece first appeared in on Backbencher, Noah’s Substack publication.
