An Online Journal of Political Commentary & Analysis

Dr. Almon Leroy Way, Jr., Editor


March 11, 1998

Could an incumbent President who violated the law during his term of office (1) give himself a pardon for any federal crimes he committed and (2) thereby avoid House impeachment, Senate conviction, removal from office, and subsequent criminal prosecution in the regular courts of law? VL


Under the U.S. Constitution, the President lacks the authority to grant himself a pardon for a federal offense, if the actual or alleged offense is at issue in an impeachment case. Article II, Section 2, of the Constitution provides: "The President . . . shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This exception to the national Chief Executive's pardoning power was purposely and wisely incorporated into the Constitution by the delegates to the Federal Constitutional Convention of 1787. Meeting in Philadelphia, the delegates included this restriction on the presidential pardoning power in order to make impossible the very situation you mentioned: The sitting President, facing congressional impeachment-and- trial proceedings and anticipating his conviction and removal from office, exercises the presidential pardoning power, grants himself a pardon for any federal crimes he may have committed while holding the Office of President, and thereby avoids prosecution and trial in federal court after his removal from office. In addition, the exception was designed to prevent the President from using the pardoning power to nullify adverse decisions arising from congressional impeachment-and-trial proceedings and thereby continue holding the Office of President, despite his being impeached (charged) by the House of Representatives and tried and convicted by the Senate.

Those who drafted the U.S. Constitution were quite familiar with the political history of England/Great Britain during and before the 17th. and early 18th. centuries and that of Britain's North American colonies prior to the War of the American Revolution and the achievement of American independence. This history very importantly involved, among other things, the long story of citizens or subjects having trouble with their government-- trouble growing out of the government's efforts to exceed the legal/constitutional limitations on its authority and to overrun and trample the people's rights and liberties. And a very important part of this story was the long record of attempts on the part of chief executives (British monarch and colonial governors) to do this. Americans, during the immediate post-revolutionary period, tended strongly not to trust chief executives, adopting state constitutions which imposed severe limits on the authority of state governors. During this era, the thirteen states ratified the Articles of Confederation, which provided for an extremely weak central government, with virtually no executive branch at all.

By the time the Federal Constitutional Convention assembled in Philadelphia in the late Spring and Summer of 1787, the delegates were aware of the downside of having a weak and impotent chief executive as well as that of having an overly powerful chief execu- tive. The delegates sought to strike a balance between what most of them perceived to be two very undesirable extremes--a chief executive too weak and one too strong. Giving the President the authority to grant pardons in federal criminal cases, but denying him such authority in impeachment cases, was part of this effort to strike a balance between executive impotence and executive tyranny.

The framers of the Federal Constitution realized that essential to maintaing and operating a constitutional republic was some legal and orderly means of calling the President's hand when and if he violated the laws of our society, abused or usurped political authority, and/or jeopardized the basic rights and liberties of the individual citizen. Following English, colonial, and early American state precedents and adapting them to the problem of creating a viable central government for a viable union of American states, the delegates to the Constitutional Convention adopted the congres- sional impeachment-trial-conviction-and-removal process as the in-between-elections method of holding accountable and applying sanctions against an incumbent President who overstepped his legal bounds. If this method was to be effective and if our laws were to apply equally and fairly to all citizens, the President could not be allowed, in impeachment cases, to pardon himself or any other U.S. government officer or officers involved with him in criminal and/or unconstitutional actions.

In the Watergate scandal 1974, Republican President Richard M. Nixon's overstepping his legal bounds by attempting to obstruct justice and conspiring with others to do so caused him to lose the Presidency, although he avoided formal charges being brought against him in Congress and the U.S. Courts. Anticipating his impeachment by the House of Representatives, his trial and conviction by the Senate, his removal from office and subsequent criminal charges being brought against him in the federal courts, Nixon resigned from the Presidency before the House could take action on the proposed impeachment resolutions. With the Office of President vacant, Vice President Gerald Ford succeeded to the Office and then pardoned ex-President Nixon for all the federal crimes he "has committed or may have committed or taken part in while President." The granting of this pardon probably cost Ford the presidential election in 1976, when the Democratic Party's candidate, James Earle Carter, won the election, defeating the incumbent Republican President.

Conceivably, Nixon, in 1974, while he was still the sitting President but fully aware of the high probability that, in the very near future, he would be impeached by the House of Representatives and subsequently tried, convicted, and removed from office by the Senate, could have taken a gamble and tested the constitutional limits of his pardoning power by granting himself a pardon for all federal crimes he committed or may have committed or taken part in while President. Then, Nixon could have made one or both of the following claims:

Claim Number One: The presidential pardon renders invalid any impeachment resolutions which the House might pass, if those resolutions pertain to the particular alleged or actual criminal acts covered by the pardon he granted himself. There can be no further action against the President. Any Senate action on the House impeachment resolutions would be unconstitutional. Hence, the sitting President has the legal right to hold on to the Office and serve out the remainder of his term.

Claim Number Two: When the President leaves office and becomes a private citizen again, the pardon he gave himself while President will render him immune to any criminal action being brought against him in the federal courts, if the action relates to the specific criminal acts he is alleged to have committed while President.

As regards Claim Number One, a person's acceptance of a pardon granted to him is widely considered to be an admission of guilt. If Nixon had granted himself a pardon and by implication accepted it, not only would he have antagonized the members of Congress even more than he actually did, but also would have accelerated House action to impeach him and greatly augmented support for this action. In addition, he would have increased the chances for Senate conviction. If he had used the pardoning power in an attempt to hold on to the Presidency in the face of the Senate's decision to convict and remove him from office, most assuredly Senate and House leaders, supported by overwhelming majorities in both chambers of Congress, would have taken the matter to the federal courts and challenged the constitutionality of Nixon's position. The case would have wound up being argued before the U.S. Supreme Court. Nixon most assuredly would have lost the case, since the Constitution plainly excludes impeachment cases from the scope of the presidential pardoning power and judicial independence of the Chief Executive as well as of Congress is an entrenched feature and essential principle of American constitutional government.

What about Claim Number Two? If legal action had been taken against the former President in the appropriate U.S. District Court and a federal grand jury had handed up an indictment charging him with the crimes he was alleged to have committed while President, undoubtedly the strategy of the defense attorneys would have been to go to a U.S. Court of Appeal and, if necessary, to the U.S. Supreme Court, seeking a decision to quash the indictment on the grounds that the presidential pardon rendered the entire prosecution illegal. This strategy of Nixon' defense and the final decision of the Supreme Court in the case would have been an interesting and most significant development in American constitutional law. My observation (hopefully, at least a shrewd guess) is that the Supreme Court would have construed, or interpreted, the impeachment-cases exception and other relevant clauses of the Constitution in a manner circumscribing the President's pardoning power, rendering invalid the pardon granted to the ex-President by himself while still President, and allowing the judicial proceedings against him to continue.In the absence of such an outcome, we would have a dangerous loophole in our constitutional law--a loophole which, in the interests of preserving the rule of law and ensuring equal justice for all under the law, would need to be eliminated, either by federal constitutional amendment or by a decision of the Supreme Court reversing, or overturning, its previous decision. Al Way

March 11, 1998

The President and EVERY other office-holding politician should not only obey ALL the laws, but also should be made to stand by the oaths they took when they entered office.

President Clinton is violating his Oath of Office (U.S. Constitution, Article II, Section 1, Clause 8): "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Uncle Billy is trying to change the 2nd. Amendment to the U.S. Constitution. That, in my opinion, is NOT preserving, protecting and defending the Constitution. It is TREASON!!!

All office-holding politicians who do not believe in and live by the Constitution and the Bill of Rights should be ousted and brought up on charges of treason.

The laws are for everyone. DWR

March 13, 1998

If everyone who broke the law lost his or her job, we would all be out of work.

Then, we would have to steal to get food. But that's not my point.

We should not treat the President worse than everyone else--especially since there are thousands of obscure laws that apply to him, but not to regular people. If he uses the wrong phone to make a call, its a felony. AC

March 14, 1998

Shouldn't background checks be required by law for presidential candidates? TBR


A very good question--and equally good point! Why shouldn't background checks be required for presidential--and vice-presidential--candidates? Such background checks are mandated by statute and/or administrative rule for many of the positions in the U.S. national government below the level of offices filled by election or political appointment.

Personal Security Investigations (PSIs)--i.e., background checks--for persons applying for or recently placed in sensitive positions in the U.S. Civil Service are routinely conducted by or under the auspices of the Office of Personnel Management (OPM), formerly known as the U.S. Civil Service Commission. A Personal Security Investigation is conducted to provide the appropriate department or agency personal officer with information about the subject's personal history and background--his or her integrity, character, reputation, mental health, credit history and vehicular driving record as well as his or her educational/professional qualifications and satisfactory or unsatisfactory service and behavior in positions of previous employment. Included in a PSI are checks into the subject's record of military service to ascertain the existence or nonexistence of court-martial convictions for serious offenses as well as checks into the records of civilian courts and police agencies to determine whether the subject has a history of felony and/or serious-misdemeanor convictions. The information provided by a PSI enables the department or agency personnel officer to decide whether the subject should be hired, rejected, retained as an employee, or terminated from employment.

Personal background investigations similar to the PSIs are conducted by or under the auspices of the U.S. Armed Forces for persons under consideration for promotion to the rank of commissioned officer.

A very important object of these background investigations is to exclude from the commissioned officer corps in the Military and from high and medium risk positions in the U.S. Civil Service persons with psychological or pathological personality disorders, records of unsatisfactory credit, unsuitable character and lack of integrity, criminal histories, and highly questionable loyalty to the United States of America.

I say, what's good for the goose is also good for the gander. What's good for would-be military officers and for persons holding or aspiring to hold positions in the Civil Service should also be good for candidates seeking elective office (e.g., President, Vice President, U.S. Senator, and U.S. Representative) and for persons being considered for offices filled by political appointment (e.g., White House senior staff positions, the heads of Cabinet-level executive departments and their immediate subordinates, U.S. Attorneys, justices of the U.S. Supreme Court, and the judges of the lower federal courts).

I see no valid reason why it should not be mandated by federal statute that any and every person actively and officially seeking a political party's nomination as its candidate for President or running in the general election as a presidential or vice-presidential candidate will be subject to a thorough background investigation to determine whether he or she has a criminal record or otherwise cloudy past. Such a legal requirement, in my humble opinion, should also apply to every candidate for U.S. Senator or Representative and to every person under consideration for a major presidential appointment. The law should require that the results of these background investigations--in the case of presidential and vice-presidential candidates as well as congressional candidates--be made part of the public record and then widely publicized by releasing them to the news media.

Of course, we already have some safeguards which help prevent criminals and other untrustworthy individuals from holding office in the national government. We have our system of checks and balances, an important part of which is the requirement (partly by constitutional provision [U.S. Constitution, Article II, Section 2] and partly by congressional statute) that, before a presidential appointment to the federal bench, to a high-ranking executive office or to an ambassadorship can go into effect, the appointment must be confirmed by majority vote in the Senate. Senators tend very strongly to take seriously this responsibility. The Senate committee responsible for recommending to the whole Senate a course of action, as regards a particular presidential appointment, is inclined to conduct a thorough background investigation of the person nominated by the President. Senate committees have been known to recommend confirmation. And the Senate has been known to reject presidential nominees.

The news media does quite a job looking into the backgrounds of the presidential and vice-presidential candidates and reporting any dirt they can find. (You may want to take another look at my remarks in Way's Commentary, Volume I, Issue # 1 [July 24, 1998]--remarks about the impact that the news media, interest groups, and other centers of political power and influence have on presidential elections.) As a result of the news media, we found out about Spiro T. Agnew, who was Vice President from 1969 to 1973, holding that office during the Presidency of Richard M. Nixon. The news media discovered and reported that Agnew had been on the take while previously serving as Governor of Maryland. Amid the charges, Agnew resigned from the Office of Vice President. Subsequently, in federal district court, Agnew pleaded nolo contendere (no contest) to income-tax violations related to the bribery allegations and was convicted.

Since that political disaster for the incumbent President and his party, presidential candidates of the two major parties have made serious efforts to check into the backgrounds of their vice-presidential running mates. And newly inaugurated Presidents have insisted that the backgrounds of prospective presidential appointees be throughly investigated by the FBI. These days, a presidential candidate or newly inaugurated President tries to take out insurance against unpleasant and politically disasterous surprises.

Of course, the role of the news media in bringing down Agnew, and later Nixon, was a role in terminating their incumbencies, rather than a role in preventing these politicians from rising to high national office in the first place. The point is that we do have some safeguards--some, but maybe not enough. What do you people out there in cyberspace think about this? If you have opinions on this matter, please let me hear from you. Al Way.

March 15, 1998

It's just like Larry King said, "President Clinton tried the whole time he was Governor of Arkansas to get a security clearance and was always denied. Governor Clinton had to become U.S. President in order to get a security clearance." I think that is an integrity check right there. MT

March 16, 1998

I, of course, agree with and support raising the larger issue of President Clinton's failue to uphold the U.S. Constitution and his suborning perjury, lying under oath, obstruction of justice, etc. However, I would like to add another dimension to the discussion. Although I am not a Clinton supporter, I wish to address an issue which I think is relevant to all of us!!

The alleged sexual misconduct conduct on the part of the President--having sex with a consenting adult who is not his wife, adultery, etc., etc.--is not a legal matter. It is a matter of morality. If such behavior is immoral but not criminal, then how in the world can the "cover up" of this behavior be considered criminal. The "cover up" of a noncriminal act is not a crime. The conduct in question should not have been investigated in the first place.

Just think about this! Suppose you engage in behavior that is immoral or socially unacceptable, but not criminal in nature. If this conduct becomes public knowledge, you may be subject to civil action and penalties in a lawsuit (e.g., a divoce and costly settlement with your former spouse). Legally, however, the behavior on your part cannot be treated as criminal and you cannot be held accountable in criminal proceedings in court.

Is the President more accountable in his private life than the rest of us? If this is what the American nation decides, it should be so written into his constitutional Oath of Office.

I agree that the President should be held to a higher standard, since he represents our nation and is a role model for all of our children. However, nothing in any written document (e.g., a constitutional provision or a legislative statute) requires the President to be any different from the rest of us.

If all of us, were treated in the same manner as the Clinton-bashers are now treating the President, we would be facing the same punishment they are seeking to inflict on him. If you were caught having a fling, indulging in an office romance, or sending flowers to a person who worked for you, you would be in deep trouble. What about the many bosses who have married their secretaries and professors who have married former students. All of those people would be guilty of as much as or more than what President Clinton has done.

As Jesus said, "Look at yourselves before you cast the first stone." If we did that, how many of us would be able to cast that first stone? JGW


As I see it, the key issue in the Clinton-Lewinsky-Paula Jones scandal is a legal issue, not a moral issue. The key issue is not whether the incumbent President engaged in immoral behavior in the White House. Rather, the issue is whether he lied about it--and sought to induce others to lie about it--in federal legal and judicial proceedings. Adultery, fornication, and similar violations of the Judeo-Christian moral code are not federal crimes. Granted! However, actions such as perjury, subornation of perjury, tampering with witnesses, obstruction of justice, and conspiracy to obstruct justice taken in an endeavor to thwart federal investigators and prosecutors in the gathering and presentation of evidence and to manipulate judicial decisionmaking and administration of justice by the federal courts, whether in criminal or civil cases, are federal crimes. They are all felonies and, in my opinion, are "high crimes in the meaning of the term, as it is used in Article II, Section 4, of the U.S. Constitution. Hence, any one of these crimes rises to the level of an impeachable offense under the Constitution.

Under federal law, immoral sexual activity carried on in private by consenting adults does not constitute a crime. However, lying about in sworn testimony before a federal grand jury or in a sworn deposition to be submitted to a federal grand jury is a crime under federal law. An ordinary person who perjures himself or herself in a federal legal/judicial proceeding and gets caught in the lie, generally winds up serving a term in federal prison. Perjury is perjury, no matter whether the activity about which the perjurer gives false testimony is legal or illegal. Perjury can and often does result in the perpetrator being put in the "slammer." That is a legal fact of life in the "good old USA." Al Way

April 11, 1998

My wife and I agree with all you said in your newsletter, but in this day when everyone is a victim and Willie "feels our pain," what are your suggestions to counter the cries from the Left that (1) no one has been able to prove that President Clinton has lied under oath and (2) all the fuss over Clinton & Lewinsky is a Republican conspiracy against the Democrats, motivated by the fact that unemployment is down, the economy is doing well, and the Republicans have no other issue to raise in Congress and in the federal elections of 1998 and 2000?


Be very, very skeptical of such claims, taking them with a grain of salt. Al Way

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