Trump’s self-pardon would clash with his impeachment

When it comes to the constitutional pardon power, let’s not forget that Donald J. Trump was impeached by the House of Representatives for abuse of power and obstruction of Congress. Article II of the Constitution expressly states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

Scholars diverge on the question of whether Trump can preemptively pardon himself for federal crimes. But even assuming for the sake of argument that a self-pardon is constitutional, it would not cover two things: criminal violations of state or local laws, and offenses for which he was impeached.

So what does this mean for Trump? 

Trump’s greatest legal liability is the specter of an indictment coming out of New York State’s criminal fraud investigation into Trump and his businesses. But recall, too, that over 1,000 former prosecutors signed their names to a statement in 2019 concluding that the 448-page report of former Special Counsel Robert Mueller contained ample evidence to warrant an indictment of Trump on obstruction of justice if he were a private citizen. 

In his report, Mueller detailed 10 separate episodes of obstruction, which 18 U.S.C. § 1503 defines as an act that “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” Mueller cited Trump’s pressuring of former FBI Director James Comey to end the probe of Michael Flynn, Comey’s firing, Trump’s efforts to have then-White House counsel Don McGahn remove Mueller and then lie about Trump’s ask publicly, and — among other incidents — Trump’s efforts to prevent public disclosure of material evidence relating to the investigation, including emails setting up the June 2016 Trump Tower meeting between campaign officials and Russians regarding “dirt” on his opponent, Hillary Clinton. 

If the Department of Justice under Joe Biden had the appetite, it could indict Trump for obstruction of justice based on the massive trove of evidence and analysis gathered by Mueller and his team. 

Of course, the political backlash of a Trump indictment arising from the Russia investigation would be swift and severe. Such a maneuver is highly unlikely given Biden’s myriad pressing priorities. But it would be the only way to tee up before a court two vital questions regarding the scope of presidential power: whether, as head of the executive branch, a president can have the intention to obstruct justice if he is ultimately in charge of DOJ itself, and whether a self-pardon is constitutional. 

If indicted for crimes that he pardoned himself for, Trump would argue that the self-pardon protects him. The Supreme Court would ultimately weigh in on whether such a defense is constitutionally valid. Without that legal set-up, a self-pardon by Trump would function as a precedent legitimizing self-pardons for all future presidents. The question, once again, isn’t what the Constitution allows, but what Trump can get away with.

But thus far, the robust conversation around the pardon power has overlooked the fact that presidents cannot pardon offenses for which they are impeached. 

Article II also states that “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason,  Bribery,  or other high Crimes and Misdemeanors.” Impeachment happens in the House of Representative — removal occurs via the Senate. Trump was impeached. By the express terms of the Constitution, he cannot self-pardon for the abuse of office and obstruction of Congress charges.

Obstruction of Congress is a federal crime. Section 1505 of the same federal statute criminalizing obstruction of justice states that “Whoever corruptly . . . . or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress” shall be fined, imprisoned for five years, or both. The House resolved that Trump obstructed Congress by directing the White House and executive branch agencies to defy subpoenas for documents, and by directing former executive branch officials “not to cooperate with the Committees” and to ignore subpoenas for testimony. These facts were not seriously disputed by Trump’s lawyers or congressional Republicans.

For its part, Article I of the Constitution states that “the Party convicted [of impeachment charges] shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” In other words, had the Senate convicted Trump on abuse of power or obstruction of Congress, he could not pardon himself for those offenses — and he could subsequently be criminally indicted and tried for them.

So even though a self-pardon would potentially position Trump to evade prosecution for federal crimes committed in or prior to taking office (note that the Supreme Court has held that acceptance of a pardon is not an admission of guilt), he likely remains on the hook for obstruction of Congress as well as any state and local crimes, assuming the applicable statutes of limitations have not expired. 

To be sure, the language authorizing a presidential indictment appears in the part of the Constitution establishing the Senate’s role in conviction on impeachment charges. Trump could argue that, even if he can be indicted if convicted on impeachment, he cannot be indicted if he’s not convicted and pardons himself for crimes associated with the charges he was impeached for, but it would be a stretch.

As a matter of presidential impunity, these are important but constitutionally-established “loopholes.” Despite the comings and goings of scholarly debates over the vastness of presidential powers, one thing is for certain: The Constitution’s Framers were done with kings.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.