How to Invalidate Pardons

The founders were not dummies

I predict that Trump and the House will use the Impeachment power to allow the Department of Justice (DOJ) to go after people whom Biden has pardoned.

Let’s start by addressing some basic facts:

1. President Trump and his administration (the Solicitor General, Attorney General, and Department of Justice) have aggressively used novel interpretations of laws to further their goals.

2. President Trump has expressed anger over the pardons granted by President Biden.

   1. Pardons of January 6 Committee Members

   2. Pardons of Dr. Anthony Fauci and General Mark Milley

   3. Preemptive pardons to several family members, including Biden’s brother, James Biden, and his wife, Sara; his sister, Valerie Biden Owens, and her husband, John Owens; and his brother, Francis Biden

   4. Full and unconditional pardon to his son, Hunter Biden

For the scope of my argument, please accept as a basic assumption that Trump wants to, and will if he could, use the DOJ to investigate and possibly indict people that Biden has preemptively pardoned.

The core of my argument stands on two clauses in the Constitution:

1. Article II, Section 2: "The President... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

2. Article I, Section 2, Clause 5: "The House of Representatives … shall have the sole Power of Impeachment."

Thus, a simple majority of the House can pass articles of impeachment against former President Biden, listing Biden’s pardons as evidence of Presidential corruption. The Attorney General will claim that the listed pardons are invalid, and the DOJ will be free to investigate and indict regardless of a presidential pardon. At the very least, by officially proclaiming (by majority vote) that Congress has opened an impeachment investigation into the corrupt use of President Biden’s pardons, Congress must be able to gather evidence about these pardoned individuals.

My key argument is a simple majority of the House can take steps to invalidate a pardon through the impeachment process.

There are several burdens this has before the Supreme Court:

1. Does the Attorney General and the President have standing to bring this case?

2. Can the current Congress impeach a prior officeholder?

3. Does the impeachment invalidate the pardons involved in the case?

4. Is a conviction in the Senate required to invalidate the pardons?

Standing

The Attorney General will claim standing based on the following assertions:

1. He (the US Justice Department) has been harmed. These pardons stand in the way of addressing illegal activity, cover-up obstruction of justice, fabricated evidence, etc.

2. The pardons are a direct barrier to the lawful exercise of the DOJ authority.

3. By invalidating the pardon, the court can redress the wrong, allowing the DOJ to address the pardon's corrupt use.

Impeaching prior officeholders

Republican Senators raised claims that once the president is no longer in office, then it’s not constitutional to impeach him and hold a trial in the Senate. These claims are incorrect. Structurally allowing someone to resign or to run the clock out to avoid impeachment would act as a get-out-of-jail-free card. Here is what it says in the Constitution:

Article I, Section 3, Clause 7: “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.

Since impeachment and conviction have elements beyond and in addition to removal from office, the House must be able to impeach a person who is no longer in office.

Second, this case demonstrates the need to impeach a prior officeholder. President Biden granted these pardons very late in his term, too late to be impeached. If this method of invalidating a pardon is constitutional, then impeachment after leaving office must be permitted. For example, the President grants a pardon for money (it’s a bribe) and does it at 11:59 on January 20th, one minute before the end of his term. Congress must be able to impeach this president to reverse the corrupt pardon.

Invalidating other pardons

The claim will be that President Biden and the people pardoned have entered into a corrupt scheme to commit crimes against the United States and then use the pardon power to cover up the crimes. President Trump has claimed that:

• The January 6 Committee has fabricated evidence, hidden exculpatory evidence, obstructed justice, and invalidated due process. He has claimed that the committee must be held accountable for these gross violations.

• Dr. Anthony Fauci must be held accountable for his crimes involving the creation of the COVID virus that has killed 100s of thousands.

• General Mark Milley’s statements were acts of Treason against the United States.

• Hunter Biden has several financial improprieties and involvements with foreign governments, from which Joe Biden has benefited. Thus, Joe and Hunter committed bribery (a listed impeachable offense).

The clause in Article II, Section 2, “except in Cases of Impeachment,” has to mean that the House can invalidate corrupt pardons cases where the House votes to Impeach the President. This clause's whole point is to ensure that the Impeachment is free of corrupt pardons.

Not requiring Senate conviction

The founding fathers were good lawyers and careful drafters of the Constitution. If they meant “except in Cases of Impeachment in the House and conviction in the Senate,” they could have said that.

Impeachment cannot proceed until the pardons are invalidated; thus, we cannot wait until the Senate convicts.

Without setting aside corrupt pardons, we create a loophole in the Constitution that allows the President to act above the law.

History

Hamilton, in Federalist #74, expresses concern that the president's broad powers could lead to their corrupt use.

Madison, in a debate on July 18, 1787, said:

"The President of the United States has the unrestricted power of granting pardons for treason, which may sometimes be exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt."

Turning Tables

As a hypothetical, let's pretend that President Trump pardons a bunch of Proud Boys, Three Percenters, KKK, or other domestic terrorist groups for violent crimes committed during Trump’s term. In my hypothetical, these crimes are well-known and shocking to the American people. The next election swings on the public outrage over the pardons and brings in a new party and majorities in Congress. The election is a referendum on Trump’s actions and his corrupt pardons. The American people would then demand that the new government first investigate and then try President Trump and the domestic terrorists for their crimes.

If investigations and trials of a President’s corrupt pardon of domestic terrorists are acceptable, then so should investigations (and possibly trials) of Biden's potential corrupt use of Pardons should be permissible.

We need to trust the legal system. We need to trust:

• The House will not impeach a person without a solid case,

• Two-thirds of the Senate will not convict without solid evidence,

• Grand Jury would not recommend indictment without a preponderance of the evidence,

• Prosecutors will act on sound judgment, will follow the law, and will not bend to political pressure,

• Judges will follow the law,

• Juries will convict only when the evidence proves the case beyond a reasonable doubt,

• Appeals Courts will review the case, looking for legal errors, procedural mistakes, or new evidence.

• That the Supreme Court will review the case without bias.

Conclusion

The founding fathers lived through a lot. They rejected a King and Tyrant. They tried the Articles of Confederation before turning to the Constitution. They debated putting the pardon power into Article II and were very concerned that the President could abuse it. They wrote the Constitution to make sure the people remained the ultimate rulers.

We do not have three co-equal branches of government. The founders wanted the legislative branch to be the strongest. The legislature represents the people, and ultimately, it’s the people who rule. That’s why the legislature came first in the Constitution. The founders gave Congress the power to impeach Article II and Article III officers, not the other way around. They placed the cause “except in Cases of Impeachment” with the intent that Congress would be able to assert power over the President so the President would not become a Tyrant.