WASHINGTON — Among the factors undergirding the new effort by House Democrats to impeach President Donald Trump again is a controversial legal theory that doing so could bar him from pardoning himself, according to those involved.
The theory is among the many reasons — and there are many, as tempers still flare after a violent and destructive attack on the Capitol by Trump supporters on Wednesday — that more than 100 House Democrats have signed on to an effort to impeach Trump, confirmed two members of Congress and a congressional aide involved in the talks.
That reasoning has only taken on more urgency as Trump has in recent weeks discussed issuing himself a pardon, according to The New York Times, which cited two unnamed sources with knowledge of Trump’s discussions.
When asked about a Trump pardon on a call with reporters on Thursday, U.S. Rep. Ilhan Omar (D-Minn.), who is sponsoring the impeachment resolution, declined to address the issue specifically. She said instead that she is leading the effort because she thinks in the big picture, Trump is dangerous.
She said she tried to contact House Speaker Nancy Pelosi and urged the speaker to call her back and support the impeachment.
“I do believe that we are facing an imminent threat from this president and that has to be the number one priority in pursuing this impeachment,” Omar told States Newsroom. “The sole goal right now is for there to be accountability for what transpired (Wednesday) and to protect our nation, our republic, from the dangerous actions of this president. And so, we know that we have a constitutional obligation to impeach.”
Pelosi, for her part, said at a news conference Thursday that she wants the president removed from office by the 25th Amendment, and threatened that impeachment is an option if Vice President Mike Pence and the Cabinet fail to act.
The impeachment resolution, released Thursday, condemns Trump for trying to goad Georgia Secretary of State Brad Raffensperger to overturn the state’s presidential election and also for inciting the violence that led to the Capitol riots Wednesday.
Many House Democrats signed on to cosponsor the resolution, including Arizonans Raul Grijalva and Ann Kirkpatrick; Florida’s Kathy Castor, Val Demings and Frederica Wilson; Nevada’s Steve Horsford; Tennessee’s Steve Cohen; Virginia’s Gerry Connolly; and Wisconsin’s Mark Pocan.
For Democrats, there are several potential victories to be had in an impeachment, one being that if Trump is successfully impeached, he could also be disqualified from occupying the role of president again.
The other is the potential constraint on his ability to pardon himself for what Democrats and an increasing number of Republicans see as his role in encouraging Wednesday’s riots at the Capitol.
The idea about the pardons is based on an expansive reading of the text in the Constitution that a president has broad pardon powers, “except in cases of impeachment.” Like so much else in the Trump years, the theory has not been tested.
Some scholars believe the wording simply precludes a president from ending impeachment proceedings with a self-pardon — or using a pardon to stop impeachment proceedings against other elected officials.
More recently, though, other scholars have interpreted the text to mean that a president could not pardon himself for the underlying alleged crimes for which the president is being impeached, thereby shielding him from criminal indictment after he leaves office.
This may go some of the way toward explaining why members of Congress are pushing so hard with only 13 days to go in Trump’s term to impeach him, a process that could take longer than those 13 days.
Jeffrey Tulis, a professor of government at the University of Texas, recently wrote extensively about the theory in The Atlantic, along with Corey Brettschneider, a Brown University political science professor.
Tulis said in an interview Thursday that commencing an impeachment proceeding could add one arrow to the quiver of those who would field a legal challenge against a presidential self-pardon, if Trump does go that route.
No president has ever pardoned himself, and legal scholars are undecided whether it would be constitutional, but many say it would certainly be challenged.
Tulis said he would like to see Congress, in any impeachment resolution, explicitly note that it is doing so at least in part to limit Trump’s pardon powers, because then the courts would be more likely to take up the question.
“If Congress, in impeaching, also expresses its opinion of the limits of the pardon power, that would in fact weigh heavily on courts. They would actually care,” he said. “Just beginning this inquiry, and ideally voting on articles of impeachment whether or not he’s tried for them, would strengthen the argument that he can’t pardon himself.”
However, other scholars don’t see it that way.
Brian Kalt, a law professor at the University of Michigan, said although he believes a president cannot pardon himself, he takes the constitutional language to mean only that a president cannot undo an impeachment through a pardon.
Far from stopping the president from pardoning himself, Kalt said, the introduction of an impeachment resolution could push Trump to pardon himself more quickly, before the House has time to vote to impeach.
“It’s a recent development that people have tried to reinterpret that impeachment exception to the pardon power,” Kalt said in a Thursday interview. “It’s long settled and very clear that all that [language] means is that impeachment proceedings are separate from criminal proceedings, and pardons only reach criminal proceedings.”
Still, Kalt said an impeachment could hold value even after Trump leaves office, because there is precedent for carrying on an impeachment trial even after an elected official’s term has ended. Trump could thus be disqualified even after he has fully finished his first term.