'Except in cases of impeachment'

Posted Friday, January 15, 2021 in Opinion

'Except in cases of impeachment'

by the New Maine Times Editorial Board

President Donald J. Trump will be gone in five days, before he faces his impeachment trial. However, he will face an impeachment trial a few days later, because he was impeached before he left office. There are several cases of impeachment of judges in U.S. history that occurred after the judge left office, for precisely the same reason  that Trump will go through a trial: Convicting him will allow for a separate vote to disqualify him from future high office.

However, Trump's second impeachment itself provides a single, important benefit, now, while Trump is still in office. It prohibits Trump from attempting to pardon himself or the people who are currently being arrested because they acted at his behest to storm the Capitol.

In Article II, Section 2, among other things, the Constitution explains some of the President's powers:  

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

It is unclear, because there is no precedent, whether a president can pardon himself in any situation anyway, and Trump is probably right that he wouldn't be able to rely on Vice President Michael Pence to pardon him, especially now. However, the Constitution is clear that Trump, even if he had personal pardon power generally, can't use it for events related to his impeachment. In the four-page impeachment document, which includes only one article, "Incitement to Insurrection", the House included more than just the events of Jan. 6 at the Capitol; they also included Trump's ham-handed attempts to subvert the election, especially in Georgia.

In the meantime, some four score insurrectionists have now been arrested. The mood in the District is tense, and in state capitals, including in Maine, the National Guard has been called out to protect the statehouses. Since the insurrectionists are instrumental to Trump's impeachment article, he can't pardon them either.

There may also be members of Congress who aided and abetted the rioters; if this is proved, they, too, cannot be pardoned. Members of Trump's own inner circle, including his son, Donald Junior, Chief of Staff Mark Meadows, and his lawyer, Rudy Giuliani, and others who participated in the incitement rally or worked to arrange it, will be unable to be pardoned either.

What Trump is thinking is curiously unknown, since his Twitter feed and Facebook pages have been shut down. All we know is what certain aides are willing to say, anonymously. They describe a defiant president without his megaphone of choice, without many allies in positions of power, and without any real defense to the impeachment charge. Trump himself has claimed that there was nothing wrong with what he said on the sixth; there is no one else who is willing to publicly say so.

Trump hopes to leave office with a military band playing as he leaves on Jan. 20 before the Joseph Biden Inauguration, marking another unfortunate flouting of presidential decorum.  It was always going to be a low-keyed affair, because of the pandemic, but now it will be nearly deserted as Biden and Vice President Harris take their oaths of office and the District shuts down most of its locations to view the Inaugural and many of its Metro stations. The FBI is following up on chatter that there is likely to be violence; 2,000 National Guardsmen are currently bunking in the Capitol.

However it goes down, Jan. 21 will be a new day. A new president and vice president will be in place; Trump will be an increasingly distant bad dream. And with luck, it is a nightmare that will never be repeated.

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