The Framers of the American Constitution, who seem to have thought of everything, even thought of Donald Trump. Under Article II, sec.2, the President was given the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Nearly everyone agreed that the President should have this power, but there were those who thought that no one should be pardoned in the case of treason without the concurrence of at least one of the two houses of the legislature, because, in the marvelous phrase of Alexander Hamilton, “the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded.”
The danger that the President might use the power to pardon to protect those with whom he had conspired to do harm to the United States by “adhering to,” or giving “aid and comfort” to, its enemies, led to one of the most important, and least remembered, exchanges in American history, an exchange that demonstrated that not only are there serious limitations on the President’s power to pardon, but that a President’s threat to use that power may itself be grounds for impeachment.
The Constitution, drafted in the summer of 1787, had to be ratified by at least nine of the thirteen states before it could take effect. On the afternoon of Wednesday, June 18, 1788, George Mason rose from his chair on the floor of the Virginia Ratifying Convention deeply troubled. No one seemed to understand that the President of the United States might not always be someone of sound character and high intelligence. Mason tried to remind the delegates that there would rarely, if ever, be a commander in chief with the courage and rectitude displayed by George Washington during the War of Independence. There might even be a President, he suggested, who would try to change our form of government. The President, for that reason, “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”
Some of the most famous men in American history were sitting there, delegates to the Virginia convention. Patrick Henry, certain that a national government would destroy the states, was desperate to get the convention to reject the Constitution. John Marshall, who as Chief Justice of the Supreme Court would do more than anyone to make the Constitution the foundation for the kind of strong national government Henry feared, was determined that the convention would ratify it. Whatever the abilities of Patrick Henry and John Marshall, however, there was no one, no one in Virginia, no in the country, no one anywhere, with a deeper understanding of the Constitution and what it meant than James Madison.
Listening to George Mason, Madison had understood immediately the force of Mason’s objection, but he had a response, a response in which he described limitations on presidential power that, to our great misfortune, we have all but forgotten. Was there a danger in giving the President the power to pardon, as Mason had insisted? Yes, replied Madison, but there was a remedy for the danger:
“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.”
Impeachment, in other words, can begin, not when the President has been formally charged with a crime, but anytime there are “grounds to believe” that the President might “shelter,” that is to say, protect with a pardon, someone with whom he is connected “in any suspicious manner.”
But whenever impeachment begins, the President holds office until and unless he is convicted by a vote of two-thirds of the members of the Senate. What can stop the President pardoning anyone who was involved in the crimes for which he is being impeached, or whose testimony might put him in jeopardy? Madison’s answer will astonish those who continue to insist that the President can pardon whomever he wishes. The President, according to Madison, still holds office, but he no longer has the power to pardon. The House can “suspend him when suspected, and the power will devolve on the Vice-President.” And if the Vice-President should also be “he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.”
It would be today an even greater security if we could all be certain that, with a clearer understanding of the limitations on the pardon power, the lawyers and judges who pride themselves on following the original intent of the framers of the United States Constitution will start to understand that Donald Trump’s insistence on his absolute right to pardon even himself is an unprecedented claim of unprecedented power that would, as George Mason feared, destroy the republic.