'No, Trump can’t pardon himself or other insurrectionists. Impeachment would strip him of that power.
[...]
The most coherent constitutional understanding suggests that if the House votes to impeach Trump — even before the Senate begins its trial — he is then barred from issuing a pardon either for himself or those related to the impeachment charges.
[...] The Constitution makes clear that the president has the power to grant pardons, "except in cases of impeachment." Some scholars have long seen that clause as an anemic power, only preventing a president from pardoning someone from facing impeachment or undoing the penalties that result from a Senate conviction.
We and other legal scholars understand the clause to mean something different — that the president cannot pardon himself or others in matters directly associated with his own impeachment. Under this view, Trump could issue no pardon for himself or the insurrectionists for criminal charges related to the events of last week. Recently, other scholars, including Lawrence Friedman and Kim Wehle, have adopted this view, which we developed at length here
https://www.theatlan...r-wrong/614083/ and here
https://balkin.blogs...etation-of.html
The key point is this: Even though the pardon power for federal crimes is virtually unlimited, Congress may still vote to impeach and remove a president for abusing the pardon power. [...] If a president issues terrible pardons, impeachment and removal is the mechanism to hold that president accountable.
But how does this accountability mechanism function if a president issues a pardon designed to disable the impeachment process itself — either by a president pardoning himself or by pardoning others to prevent them from providing vital information to Congress for his own impeachment? As we and other legal scholars have argued, the exception explicitly mentioned in the Constitution — that the president has the power of pardon "except in cases of impeachment"— should be interpreted to preclude pardoning himself or others whose acts were directly connected to his own impeachment.
Congress's own interpretation of the pardon power may matter greatly, especially since the Supreme Court has never definitively decided the extent of the impeachment exception. Recent news reports indicate that members of Congress also understand impeachment to strip the president of his pardon power. [...]
This matters, too, for how courts ultimately decide the question. Courts have a history of deferring to Congress on matters they deem inherently political. That deference is especially prominent in matters of impeachment. The Constitution grants the House the "sole power" of impeachment. And the Court ruled in Nixon v United States, a case about a federal judge named Walter Nixon, that the Senate had the power to set its own rules in impeachment trials. That is, as long as the rules are in accordance with the Constitution's specific regulations, the courts would not micromanage the impeachment process. Given this precedent, the courts may see fit to give Congress leeway in this case.
[...] Even still, it is possible that Trump could try to pardon himself and his allies. Or he could even grant a blanket pardon to the insurrectionists who attacked the U.S. Capitol on Jan. 6. In that case, it would be up to the courts to decide whether to honor those pardons or, consistent with Congress's will, to allow the criminal justice system to move forward in holding those responsible parties accountable for their crimes against the Constitution and the country.'
https://www.washingt...sbe86oh4Bbcc64I
IDK, doesn't seem like that argument would win over the originalist/textualist far right majority on the Supreme Court now....
This post has been edited by Azath Vitr (D'ivers: 16 January 2021 - 04:16 AM