I am not a lawyer, not a constitutional expert, not a pundit and not a philosopher. Like so many others, I am simply worried for the future of our country and the havoc that Trump has already caused in the final days of his failed Presidency.
Multiple headlines, articles and diaries have chronicled President Trump’s intention to grant pardons to his family, and likely himself. Simultaneously, Speaker Pelosi, many others in the Democratic Leadership and at least some Republicans are supportive of the timely (second) impeachment of President Trump.
As many call for the impeachment process to happen faster (a sentiment I agree with), it occurs to me that one of the reasons these articles of impeachment may be taking a little bit of time to finalize is the likelihood that the articles themselves need to be carefully written in order to prevent certain Presidential pardons from being actionable.
The Constitutional provision for pardons states:
“The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”
The clear language of this provision would indicate that pardons cannot be granted for crimes arising from or articulated within successful articles of impeachment. Nothing in the wording indicates that this applies only to the crimes of the President who is being impeached, but instead logically must mean all crimes by all persons associated with the articles of impeachment.
For this reason, it is important that the articles of impeachment address President Trump’s apparent attempt to foment insurrection.
18 U.S.C. § 2383, rebellion or insurrection:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
It is also important that the the articles of impeachment address the charge of seditious conspiracy, which is codified at 18 U.S.C. § 2384
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
This would prevent Trump from successfully exercising his pardon powers for any involved in the failed coup.
While others strongly disagree, I personally believe the articles of impeachment should also address the call that President Trump made to to the Georgia Secretary of State which may have violated 52 U.S. Code § 20511.
A person, including an election official, who in any election for Federal office-
(1) knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person for-
(A) registering to vote, or voting, or attempting to register or vote;
(B) urging or aiding any person to register to vote, to vote, or to attempt to register or vote; or
(C) exercising any right under this chapter; or
(2) knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by-
(A) the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held; or
(B) the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held,
shall be fined in accordance with title 18 (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31), notwithstanding any other law), or imprisoned not more than 5 years, or both.
This would prevent him from pardoning those involved (including himself, Giuliani and others in the President’s circle) in this related attempt to undermine a free and fair election.
While it is possible that Trump will begin issuing these pardons prior to the conclusion of the impeachment process, there is nothing in the clear language of the constitution that indicates the articles of impeachment (if successfully passed) cannot undo or nullify a previously issued pardon if it is directly related to the crime articulated in the articles of impeachment.
Since “impeachment” is separate from the Senate’s decision to remove President Trump from office, these pardons can be prevented or nullified if the Articles of Impeachment are passed solely by the House.
