But there is a strong argument, rooted in the Constitution’s text, history, values, and structure, that in addition to banning the prevention or undoing of an impeachment, this phrase also bans a president from using the pardon and reprieve power to commute the sentences of people directly associated with any impeachment charges against him. This argument is not a partisan one. Whatever rule is applied today would necessarily apply to future presidents, Democrats as well as Republicans.
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The impeachment charges against President Trump focused mainly on his alleged withholding of foreign aid from Ukraine to pressure the Ukrainian president into digging up dirt on Hunter Biden that could support Trump’s reelection campaign, and on his refusal to cooperate with the congressional investigation of this matter. But the articles of impeachment also explicitly invoke his “previous invitations of foreign interference in United States elections” and “previous efforts to undermine United States Government investigations into foreign interference in United States elections.” According to our interpretation of the pardon clause, that would mean he can’t use the pardon and reprieve power to commute the sentences of those charged with crimes related to Russian interference in the 2016 campaign—including Stone, who was convicted of lying to Congress and obstructing its investigation into Russian election interference. This obstruction impeded the ability of Congress to gather information that could have been vital to the impeachment inquiry, benefiting Trump.
Our interpretation stems, in part, from the fact that the Constitution’s Framers were deeply concerned about presidents abusing power to protect co-conspirators. As just one example, regarding treason, the Virginia delegate Edmund Randolph voiced a concern at the Constitutional Convention that “the prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”
The votes of Randolph’s fellow delegates on the wording of the pardon clause at the convention reflect the overarching concern to curb this power, though their specific intentions are unclear. On August 25, 1787, delegates voted on this matter. As it stood, the president had “the power to grant reprieves & pardon.” Unanimously, the delegates voted to insert “except in cases of impeachment” after the word pardon—the language we are familiar with today. Directly afterward, they rejected the addition of the phrase “but his pardon shall not be pleadable in bar” in a six-to-four vote.
These votes reflect more than merely semantic differences. The language “his pardon shall not be pleadable in bar” was pulled directly from the British; it banned the king from pardoning officials who were being impeached, but did not prevent him from pardoning officials after their impeachment. The traditional interpretation of the meaning of “except in cases of impeachment” is that it simply removed this loophole, preventing presidential pardons both during and after impeachment and conviction. However, the Framers’ rejection of the British phrase after having inserted “except in cases of impeachment” strongly suggests that the American delegates saw the new phrase as having a meaning distinct from the traditional interpretation. If “except in cases of impeachment” already covered both of those limits on presidential pardons, why would the Framers then need to vote on whether to include the British language—language that would have merely imposed the first limit they’d already unanimously approved? Given the unclear record of what the Framers meant to do that day, any interpretation of its meaning based only on the evidence we have about the day the phrase was adopted is speculative at best.