In 1788, Virginia convened a convention to debate ratification of the new U.S. Constitution, promulgated in Philadelphia the year before.
The pardon power proved to be a sticking point for some delegates. George Mason, the primary author of Virginia’s own constitution, was among those worried that the unchecked ability to unilaterally pardon criminality could lead to abuses of power. What if the president “may frequently pardon crimes which were advised by himself”?
James Madison acknowledged that this would be a serious abuse but argued there was a remedy.
“There is one security in this case to which gentlemen may not have adverted,” Madison said, “if the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; [and] they can remove him if found guilty.”
This episode has gathered fresh attention in the wake of the Jan. 6 riots, and the impeachment trial it ignited. President Trump was impeached but not convicted.
That was a mistake in my opinion. But I’m not here to relitigate it. I want to be forward-looking.
The British statesman Edmund Burke famously argued that one of the “fundamental rules” of a decent society was that “no man should be judge in his own cause.”
For the founders, this insight informed the logic of the entire constitutional project. Burke’s observation was so universally agreed upon it often came up — sometimes without attribution — in debates at the Constitutional and ratifying conventions.
Madison invokes the idea in Federalist 10, in the context of faction and the need to have separation of powers. “No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”
Alexander Hamilton cites it in Federalist 80 as the reason why federal courts should adjudicate disagreements between states — it was assumed that state judges might be biased toward their own side of the dispute.
This idea lurks behind all of Congress’ powers and responsibilities, including advice and consent, the sole authority to tax and spend, the power to declare war and, of course, impeachment. Presidents are not arbitrary rulers. They are stewards, with defined and limited powers.
On Monday, President Trump settled a $10-billion lawsuit brought by himself. In his first term, Trump’s tax returns were illegally leaked. When Trump returned to the presidency he filed suit against the Internal Revenue Service. So, as a constitutional matter, Trump is suing the executive branch he runs for a crime committed by the IRS back when he ran it in his first term.
Realizing that the courts might find this too cute to countenance, the Justice Department and IRS — both, again, run by Trump — compromised by creating a $1,776,000,000 fund (that “1776” before all the zeros is a play on the country’s 250th birthday) that Trump will control. Its primary function would be to compensate the Jan. 6 rioters, all of whom he has already pardoned.
The president recently said that if China invades Taiwan, he alone will determine whether the U.S. will defend Taiwan. “Me. I’m the only person” who decides. Last summer, Trump told the Atlantic that the difference between his first term and his second was that he didn’t have anyone in his administration to hinder him. This time, “I run the country and the world.” Congress and the courts don’t enter into it.
After Trump unilaterally replaced at gunpoint the president of Venezuela with a pliant satrap, without the approval of Congress, the New York Times asked if there were any limits on his will: “Yeah, there is one thing. My own morality. My own mind. It’s the only thing that can stop me.”
I began with a discussion of the pardon power and impeachment for a reason. Contrary to thousands of hours of impeachment legal punditry going back to the Nixon administration, a president doesn’t have to commit a crime to be impeached. As Hamilton writes in Federalist 65, impeachment involves “the misconduct of public men” and “the abuse or violation of some public trust.” Impeachments are “POLITICAL” (Hamilton’s all-caps) because they injure “society itself.”
It may in fact be legal for the president to be the judge in his own cause and create a taxpayer-financed slush fund for him to reward cronies and henchmen on a whim. It is already clear that presidents can launch wars without Congress or the courts unduly getting in the way. But I struggle to think of hypothetical scenarios that would be more likely to arouse in Madison and his contemporaries the — now misplaced — reassurance that impeachment was an available remedy.
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