03:07 - Source: CNN
Avlon: A Trump self-pardon is not what the founders intended

Editor’s Note: David Gray Adler is a constitutional law scholar and president of The Alturas Institute, a non-profit organization created to advance American democracy by promoting the Constitution, gender equality, civic education and equal protection of the law. He is co-author, most recently, of “The War Power in an Age of Terrorism.” The views expressed here are solely his. View more opinion articles on CNN.

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President Donald Trump’s hypothetical option of granting himself a pardon before leaving office effectively ended when the House of Representatives opened debate on a single article of impeachment, charging “incitement of insurrection,” and voted to impeach him in a bipartisan vote of 232-197 on January 13.

David Gray Adler

The Pardon Clause of the Constitution, Article 2, Section 1, provides that the President may grant pardons for offenses against the United States “except in Cases of impeachment.” This clause bars a president from pardoning anyone — including himself — who is the subject of impeachment once debate on offenses set forth in the articles of impeachment begins.

This constitutional limitation on the pardon power reflects the deep influence of English legal history on the framers’ drafting of the impeachment and pardon clauses. The framers, keenly aware of the 17th Century clashes between King and Parliament on the scope of those powers, were determined to protect the power of impeachment from executive encroachment through the exercise of authority to grant pardons. Although the restrictions in the Pardon Clause seem to refer only to specific offenses being addressed in the impeachment proceedings, the English law background and history provide an overwhelming case against a presidential self-pardoning authority on any basis.

The framers’ position on the pardon and impeachment powers was fashioned by a pivotal episode in English legal history, one riddled with convulsions and crises, in the century-long battle between King and Parliament over two foundational powers that shaped the evolution of English law. It was a case in which the King’s grant of a pardon to another was actually an attempt to absolve his own misdeeds.

In 1678, Parliament was outraged by the discovery of surreptitious maneuvers by the Earl of Danby, the trusted Lord Treasurer serving England’s King Charles II, to tilt England’s foreign policy toward France and to solicit a pension, that is, a bribe, from King Louis XIV to pay Charles II, as part of a design to restore the influence of Roman Catholicism in England – a move that offended the sentiments and violated the policies of Parliament.

Lord Danby was serving King Charles II, who had laid out the scheme and provided his chief minister with instructions to follow. Danby’s downfall was set in motion when he wrote a letter to Ralph Montague, an English courtier and middleman for the arrangement with King Louis. This letter bore Danby’s signature, and when it became public, the House of Commons was infuriated.

Parliament had no legal authority to impeach the King himself, so lawmakers launched impeachment proceedings against Danby instead. Danby was impeached for “High Treason and other High Crimes, Misdemeanours and Offences.” Charles, anxious to protect his loyal aide, tried to block the impeachment by marching to the House of Lords and declared that he had authorized Danby’s acts, that he had granted a pardon to Danby, and that Danby had been dismissed.

Parliament, however, would have none of this. Sir Francis Winnington, a former Solicitor General regarded by historians as a great lawyer, immediately grasped the existential threat to the impeachment power. He justly stated, “An impeachment is of no purpose when a pardon shall stop our mouths.” For a nation in which executive accountability was still in its nascent stage, monarchical pardon to derail impeachment would not be tolerated. In a century replete with constitutional crises between the Commons and the Crown, Charles had no stomach for another. He voluntarily withdrew his pardon of Danby, who was sent to the Tower of London, where he was held for five years. The legal and political convulsions that engulfed the Danby Affair were brought to an unceremonious end when King Charles dismissed Parliament.

This refusal by Parliament to accept King Charles’ pardon of Danby, followed two decades later with the enactment of the historic Settlement Act of 1700 barring the pleading of a pardon to an impeachment, left an indelible impression on the framers of the Constitution. Pennsylvania’s Gouverneur Morris invoked the Danby scandal in the 1787 Constitutional Convention to punctuate his, and fellow delegates’, fear that the “president could be bribed to betray his trust.”

If the English Parliament had accepted the pardon, the King would have been free to screen ministers from parliamentary inquiry and impeachment — and thus put himself beyond the reach of Parliament. For members of the House of Commons who viewed the impeachment power as a means to preserve government and bring corrupt ministers to heel, the act of executive clemency could not be tolerated.

The framers of the American Constitution were not about to allow their own newly minted executive a power denied to the King of England. There is no mention of self-pardons in the records of the debates in the Constitutional Convention or evidence of any discussion of such authority in the Federalist Papers, anti-Federalist Papers, or any document contemporaneous with the framing of the Constitution. The very suggestion of such authority would have triggered accusations of monarchical sympathies.

It’s a fair bet that the notion that a specific constitutional prohibition against executive self-pardon would ever be required was a failure of the framers’ imagination. When Charles II’s father, Charles I, was sentenced to death in the High Court of Justice, in 1649, for treason, murder and other crimes of tyranny, he denied up until his beheading that the court had any jurisdictional authority over the monarch. But in the long sweep of English history, neither he nor any other monarch ever claimed the power to self-pardon.

The framers of the Constitution vested in the US President less, not more, power than that attributed to the King. But let’s say that Trump, having flouted the norms so many times before, does attempt to pardon himself for any crimes he might have committed outside the purview of the ban on impeachment-related pardons.

Such a self-pardon will have limited utility given the sorts of legal challenges that Trump may be forced to confront. A presidential pardon does not extend to state offenses, which means he could still face charges arising from state and city investigations currently being conducted in New York.

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The Supreme Court has made clear that constitutional adjudication often requires resort to historical arguments, claims and practices. Lacking a textual statement in the Constitution of a presidential authority to self-pardon, and lacking even a scintilla of evidence in Anglo-American legal history to support the existence of such a staggering power, or any assertion to that effect by just one delegate to the convention, Trump’s premise of a self-pardon should be as risible to strict and loose constructionists on any court as his assertion that the President is endowed with “absolute” power.

And when Trump effectively tried to assert absolute power in Washington on January 6 by inciting his followers to overturn an election, he triggered the unpardonable impeachment charges that should – if all else fails – be a slam-dunk in a court of law.