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Article II, Section 2, of the United States Constitution establishes the presidential pardon power as follows.

The President shall ... have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

This question is about the caveat "except in Cases of Impeachment".

Consider the following hypothetical sequence of events.

  1. Vice president Smith commits a federal crime.
  2. Smith is impeached and removed from office for this crime.
  3. President Miller pardons Smith for his crime.
  4. Miller leaves office at the end of his term.
  5. Smith is charged in federal court over the crime he committed (event #1).

Now presumably Smith will argue that since he was pardoned, the charges should be thrown out. However, the prosecution can argue that the presidential pardon power does not apply in cases of impeachment and, since Smith was indeed impeached and removed from office because of this crime, it does not apply here.

My question: Would this argument succeed? That is, could Smith be convicted despite the pardon?

To be clear, the question is not whether Smith can remain vice president due to the pardon. It is only about whether he can face criminal consequences for the crime he was impeached and pardoned for.

Perhaps a less hypothetical version of the question would be "If Nixon had been impeached and removed from office (rather than resigned), would Ford's pardon still protect him from criminal prosecution?"

I don't expect that it is possible to definitively answer this question, since it is entirely hypothetical. However, I would like to know if there is any relevant precedent or legal analysis.

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  • "Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." At least textually, I don't think the hypothetical pardoning is a case of impeachment.
    – xuhdev
    Dec 7, 2019 at 1:15
  • #3 wouldn't happen since Presidential pardon powers do not extend to impeachment, so I think your premise is flawed half-way through your scenario.
    – Ron Beyer
    Dec 7, 2019 at 1:29
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    @RonBeyer In # 3, couldn't the President pardon VP Smith for the underlying crime, not the impeachment?
    – Just a guy
    Dec 7, 2019 at 3:17
  • @RonBeyer Sorry I wasn't clear. You are right that he cannot stay in office by virtue of a pardon; the question is whether the impeachment exemption invalidates the pardon entirely -- including protection from criminal consequences. Edited to clarify.
    – Thomas
    Dec 7, 2019 at 4:29
  • @RonBeyer #3 is not a pardon of a case of impeachment, it's a pardon of a crime that was the basis of the impeachment -- two very different things. Note that a pardon implies guilt, so it makes an argument for impeachment and removal even stronger. P.S. I see now that the question was edited after your comment, so perhaps you took it to mean that the pardon was for the impeachment itself and not the underlying crime.
    – Jim Balter
    Dec 10, 2019 at 19:39

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He will be thrown out of office (the "except in case of impeachment" clause means the president cannot immunize a person against impeachment); because he was pardoned by POTUS, he will not be charged of the crime that he was pardoned for – the prosecution does not get a chance to argue anything. They might however prosecute him for some other offense not covered by the pardon (if POTUS forgets a sweeping statement like "any and all crimes related to X").

I don't think a prosecutor is likely to try to argue that the Constitution means "the president cannot pardon a person who has been impeached".

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    Your reading is supported by the earlier drafts of the Committee on Detail. After giving the President the pardon power, those drafts say, "but his Pardon shall not be pleadable in Bar of an Impeachment." Interestingly, the main topic discussed was whether to give the President the power to pardon Treason. They worried he was likely to be a party to any treason plot.
    – Just a guy
    Dec 7, 2019 at 3:14
  • @Justaguy Do you have a link to those drafts? (For reference; not disputing it--that is my understanding of the meaning.)
    – Jim Balter
    Dec 10, 2019 at 19:53
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    @JimBalter I got this from the "Records of the Federal Convention" excerpted in The Founders' Constitution. Do you know this collection? It's arranged by section of the Constitution and topic. (Figuring out how to use it can take a while. I google "FC" + whatever phrase I'm looking for.) The page on the Pardon Power I used is press-pubs.uchicago.edu/founders/documents/a2_2_1s1.html. All of their docs on the Pardon Power are at: press-pubs.uchicago.edu/founders/tocs/a2_2_1.html You can browse it all here: oll.libertyfund.org/pages/founders-constitution
    – Just a guy
    Dec 10, 2019 at 20:27
  • @Justaguy Thanks much ... will look into it.
    – Jim Balter
    Dec 11, 2019 at 5:40
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It means 2 things.

First, impeachment can apply to department principals and judges. So a President can't reverse their removal from office by pardoning them nor preempt their impeachment and impeachment trial by pardoning them.

Second, pardon removes most civil disabilities(section 10) resulting from a criminal conviction. That includes not being able to hold public office. Impeachment may result in the impeached official's not being able to hold a public office. This civil disability cannot be removed with a pardon.

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A very odd thing about Article II, Section 2 is that it's mostly about the military, indicating the framers had pardons for military offenses firmly in mind.

It's also worth noting that the pardon power only extends to Federal crimes, and many Federal statutes have a State equivalent.

This is an area of the constitution that could certainly use a few more exceptions:

...except in Cases of Impeachment, excepting for himself, excepting in cases of acts committed during his own term...

https://brycenesbitt.medium.com/preventing-corrupt-self-pardons-in-the-post-trump-era-5ea082b441a

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Right now a lot of Dems are saying that if the President is impeached in the House he cannot be pardoned. I don't think that's right.

I think the implication is that if the Senate convicts on matters of impeachment and removes the President from office, the next President does not have the authority to pardon him. Quite simply, the President can pardon any federal crime, UNLESS the Senate has convicted in matters of impeachment.

That's how I read it. Or else you're forced into this ridiculous notion that a convicted criminal can be pardoned for any federal crime, but yet the former President of the United States--who was never convicted of anything--cannot be. I don't see how that's logical at all. I mean, you can be eligible to go on being president but not eligible to receive a pardon from a subsequent President? That strikes me as utterly absurd and I cannot believe that's what the Framers had in mind at all.

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    You need to distinguish between a pardon of an impeachment--allowing the impeached person to remain in office or hold other office--and a pardon for some federal crime that is the basis for an impeachment. These are very different things and only the former is precluded ... see user6726's answer and Just a guy's comment supporting it from the historical record. You're correct that merely being impeached in the House does not preclude a pardon (though I don't think "a lot" of Dems are saying so), but being convicted in the Senate doesn't preclude a pardon for the underlying crime either.
    – Jim Balter
    Dec 10, 2019 at 19:50
  • A third (less likely than the main viewpoint) potential interpretation is that the President does not have the pardoning powers during the time there is an impeachment case ongoing against him. Perhaps during that time, the presidential powers (at least the ones in that paragraph mentioning the pardon power) might be delegated to the VP.
    – Jose_X
    Jan 15, 2021 at 22:32

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