Miscellaneous Musings: Presidential Pardons and Impeachments.
Can a President be impeached for a bad pardon?
I plan to write a piece for my blog, Matitya’s Many Musings on a Myriad of Matters, explaining that the President of the United States isn’t as powerful as you think he is. That having been established, there is an exception to my observation.
That exception is that the President can “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” (The US Constitution Section 2)
What happened there is that Alexander Hamilton, and a number of other Founding Fathers of the Unites States, believed that enough people would be dissatisfied with the Constitution that treason would likely occur and if there were no option of clemency then the would-be Rebels would feel compelled to fight to the bitter end, refusing even to consider the option of surrender, so they concluded it was necessary to empower the President to pardon any offender. Hamilton initially argued that a presidential pardon for the crime of treason would have to be conditioned on the approval of the Senate but later came to James Madison’s view that
“it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate; because numerous bodies were actuated more or less by passion, and might, in the moment of vengeance, forget humanity.” (Details linked here)
George Mason argued against Hamilton and Madison, Mason objected that, under this system, a President was likely to pardon people who committed crimes at his own urging. (For what it’s worth, I think Mason was right.) Madison responded
“There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.” (Details linked here)
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This swayed Mason into accepting Madison and Hamilton’s efforts to give the President the pardon power.
It was upon this grounds that the political commentator Jonah Goldberg has advocated Joe Biden’s impeachment for pardoning his son, Hunter, and that David French has advocated for Donald Trump’s impeachment for pardoning the January 6th rioters. While I agree with Goldberg and French, no President has ever been impeached on these grounds. The closest something like that ever came to happening was when Andrew Johnson’s Secretary of War, Edwin Stanton, resigned in protest of Johnson’s decision to pardon former Confederate leaders.
To provide historical context, when Abraham Lincoln was elected president of the United States, several Southern states seceded in protest. Quite a lot of Democrats chose to support the secession of the southern Confederacy, but a number of them opposed secession in favour of remaining a part of the Union. Andrew Johnson was one of these Unionist Democrats. Lincoln had his Vice President replaced on the ticket with Johnson, in 1864, and was re-elected by a landslide such that Johnson became president when Lincoln was murdered.
Then the Senate voted in favour of the Tenure of Office Act (linked here) which said that a President could temporarily suspend and replace a civic appointee (at his own discretion) if, within the next twenty-one days, he reported this to the Senate to persuade them of the necessity of this decision. Were the Senate to confirm the President’s decision, it would be ratified but if the Senate voted against it, then the person the President suspended would be reinstated. Johnson vetoed this law, claiming that it undermined the President’s constitutionally protected role as the leader of the executive branch. A two-thirds majority in the House of Representatives voted to override Johnson’s veto, so the Senate held another vote. A two-thirds majority, in the Senate, voted for the Tenure of Office Act and, as such, Johnson had no choice but to sign it into law.
Johnson pardoned Confederate leaders, reckoning that doing so was necessary to enable the reunification of the country in the wake of the Civil War. The Secretary of War, Edwin Stanton, a holdover from the Lincoln Administration, criticised Johnson for this and for Johnson’s opposition to granting legal equality to freed slaves. So, Johnson waited until the Senate was out of session, fired Stanton, and unilaterally appointed Lincoln’s general Hiram Ulysses Grant to Stanton’s position. As soon as the Senate was again in session, Ulysses Grant realised his position wouldn’t last, so he resigned (essentially saying ‘you can’t fire me, I quit’.) The Senate then reinstated Stanton. Johnson then re-fired Stanton, without Senate approval, and replaced him with Major General Lorenzo Thomas. The Senate voted against confirming Thomas but Thomas accepted Johnson’s commission anyway, so Stanton called the police on Thomas and accused him of illegally seizing the office of the Secretary of War. Thomas was promptly arrested. The Senate then voted to reinstate Stanton.
Republicans in the House of Representatives then initiated an effort to impeach Johnson for having willfully defied the Tenure of Office Act. At the time, there were 190 members of the House. One hundred and twenty-six voted for impeachment. That’s about 66 %. Forty-seven voted against it. That’s about 25 %. The remaining seventeen abstained. (That’s about 9 %.) After the House impeached Johnson, the Senate put him on trial. At the time, there were 54 senators, two for each of the twenty-seven states, such that thirty-six senators needed to vote guilty for there to be the two-thirds majority needed to convict Johnson and remove him from office. Thirty-five Senators voted to convict. As a result, he was acquitted by one vote. After that, Johnson’s attempt to secure the Democratic Party nomination to run for President, in 1868, failed, probably because of his impeachment. (In 1926, the Supreme Court ruled that the Tenure of Office Act was unconstitutional, details linked here).
Now, there have been presidential impeachments since then but none of them were adjacent to bad pardons the way Johnson’s impeachment was (and even Johnson’s impeachment wasn’t primarily about that.) Richard Nixon responded to the House filing a motion to impeach him by simply resigning (essentially saying ‘you can’t fire me, I quit’). That said, based on the fact that Bill Clinton and Donald Trump were both impeached, since then, but fought it out at their Senate trials and won, (just as Johnson did) it seems that impeachment procedures are not an effective mechanism through which to remove a president.
My name is Matitya and this has been one of my Miscellaneous Musings.
