Abuse of Pardon Power: An Impeachable Offense?

The presidential power to grant reprieves and pardons for offenses against the United States, save in cases of impeachment, is enshrined in Article II, Section 2, Clause 1 of the U.S. Constitution. This formidable authority, seemingly absolute, rarely draws scrutiny in the daily discourse of executive action. Yet, a closer examination reveals a critical question: Can the abuse of this bedrock constitutional power rise to the level of an impeachable offense? This is not about the wisdom of a particular pardon, but about its fundamental distortion for personal gain or to obstruct justice.

While the Constitution explicitly exempts cases of impeachment from the pardon power, it remains conspicuously silent on the inverse – whether the pardon power itself can be wielded in such a manner as to warrant impeachment. This silence invites careful constitutional analysis, particularly in an era where accountability for presidential conduct is paramount.

The Framers' Intent and the Peril of Unchecked Power

Alexander Hamilton, writing in Federalist No. 74, lauded the pardon power as an "act of clemency" essential for "the object of public justice" and to "restore the tranquility of the commonwealth." He envisioned a power used with discretion, perhaps to quell insurrections or mitigate overly harsh judicial sentences. He did not, however, explicitly delineate its potential for abuse.

However, the broader philosophy underpinning the impeachment clauses – Article I, Section 2, Clause 5 and Article II, Section 4 – suggests that any profound breach of the public trust, any "high Crimes and Misdemeanors," could serve as grounds. The framers, keenly aware of monarchical abuses, designed impeachment as a vital check. As George Mason articulated during the Constitutional Convention, impeachment was necessary "for carrying into execution the great trust delegated to him" and to prevent a president from "rendering himself obnoxious to the people."

"The power of pardoning offences… is a happy expedient for preventing the mischiefs of sanguinary prosecutions and convictions which might happen without any fault in the innocent, or any considerable degree of guilt in the condemned." - Federalist No. 74, Alexander Hamilton.

This benevolent view of clemency contrasts sharply with scenarios where a president might pardon associates involved in criminal schemes directly related to the president's own conduct, or offer pardons as an inducement for silence or obstruction. Such actions warp the constitutional design of the pardon from an instrument of justice into a shield against legitimate inquiry.

Abuse of Power as "High Crimes and Misdemeanors"

The impeachment standard of "high Crimes and Misdemeanors" has historically encompassed a range of conduct beyond indictable offenses. As Justice Joseph Story noted in his Commentaries on the Constitution, these pertain to "political offenses, of a character which are not at all, or not exclusively, of a legal character." They often involve breaches of public trust, abuse of official power, and undermining the integrity of government.

Consider a hypothetical: a president offers a pardon to an individual in exchange for false testimony or to prevent that individual from cooperating with an investigation into the president's own electoral interference or financial dealings. This is not merely an exercise of executive prerogative with which one might disagree; it is a perversion of justice. It transforms a constitutional safeguard into an instrument of corruption. Such an act could clearly fall under the umbrella of "obstruction of justice" – an article of impeachment leveled against both Presidents Nixon and Clinton.

The unique aspect of pardon abuse, however, is that it directly leverages a constitutional power for an illicit end. This differentiates it from, say, campaign finance violations directly. It's the weaponization of a foundational executive authority. Furthermore, if a pardon is used to insulate a president or their confederates from accountability for a "high Crime or Misdemeanor," it effectively nullifies the impeachment process itself by undermining the integrity of subsequent legal proceedings.

The Nexus to Obstruction and Corruption

The most direct path to impeachment for pardon abuse lies in its connection to obstructing justice or corruption. If a pardon is part of a quid pro quo — a favor granted in exchange for something of value, be it silence, political support, or a personal benefit — it becomes an act of corruption. This directly implicates the president's oath to "faithfully execute the Office of President of the United States, and… preserve, protect and defend the Constitution of the United States." A corrupt pardon fails on all three counts.

The House Judiciary Committee’s report on the impeachment of Richard Nixon, particularly on the obstruction of justice article, included misuse of government agencies and powers. While not focused on pardons, the principle applies: using the powers of the presidency to impede lawful investigations or shield oneself and allies from accountability constitutes a grave breach of duty.

Similarly, imagine a scenario where a president pardons individuals involved in violence against the government (e.g., in a January 6th-like event) not out of a genuine belief in their innocence or over-prosecution, but to reward political loyalty or incite further unrest. This would constitute using a constitutional power to undermine the very stability and integrity of the republic it is sworn to protect, demonstrating an egregious abuse of power and a dereliction of constitutional duty that demands accountability.

The power to pardon is a sacred trust. When this trust is betrayed for personal benefit, to obstruct justice, or to undermine the rule of law, it ceases to be an act of clemency and transmutes into a high crime and misdemeanor, squarely placing it within the purview of impeachable offenses. The framers provided impeachment as a safety valve against such abuses, and it is in such severe instances that its application becomes not merely warranted, but constitutionally imperative.

To delve deeper into the systemic issues of presidential accountability and the historical precedents for impeachment, I invite you to read Chapter One of Why Impeach – available for download here: /download.