Losing in 2020 might just be the start of the game

Obscure corners of the US constitution were made for delving into, particularly when they interact with a scenario which is not wholly implausible: in this case, a post-presidency impeachment.

“Hang on”, you might say; “doesn’t impeachment, if successfully carried, involve the loss of office? In which case it would be pointless for someone who’s already gone?”.

Yes, it does – but that’s not all it does, which is what might become key here.

Before turning our attention to the constitution, let’s think about one key assertion that Trump has made: that he has the power to pardon himself of federal crimes. As the constitution is written, he’s technically right. There is only one limitation placed on the presidential power of pardon for offences against the United States, and it doesn’t relate to who they can be for. If he wanted to issue himself and his family and associates blanket pardons for any federal crime committed (whether tried or not), he could do so on the day he left office. I would not put it past Trump to do so.

Which begs the question, what could anyone do about the lawful – but grossly abusive – exercise of a constitutional presidential power; one which would effectively give him a blank cheque? Well, the constitution’s checks and balances provides the answer in the form of impeachment, which is the one form of conviction that the president cannot override.

Could Congress, however, convict an impeachment without some specific ‘high crime or misdemeanour’ to hang it on, and would that be sufficient to nullify a blanket pre-emptive (and hence unspecific) self-pardon? On the first, probably no: impeachment articles would need to be more specific than a pardon would – but there is no shortage of options to work with. On the second, again, probably no: it’d be limited to the articles of impeachment.

Here we need to turn back to the constitution and in particular, the clause which limits the consequences of impeachment not just to loss of office and debarment from future office but also that “the party convicted [in the impeachment] shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to Law.”

In other words, it follows that if a presidential pardon cannot be applied to an impeachment (which the constitution says it can’t), then an impeachment must override any pre-emptive pardon and render the subject liable to the due process of law.

Trump and his lawyers might well still argue that you can’t impeach someone who’s not in office, perhaps pointing to Section 4 of Article II, which says “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. They would, presumably, argue that as he was at that point no longer president, he was no longer subject to its process. However, that would be a very limited view of its scope and far from the only one possible. While that clause identifies the automatic consequence for impeachment for the holders of the specified offices, it neither places a limit on those consequences (though other clauses do, and go beyond this one), nor does it necessarily limit impeachment to those holding the named office.

How likely is all this? Improbable but far from impossible. There’s no saying what a desperate Trump might do in an effort to win an election he could be losing – never mind what Mueller has found that he’s already done. His Louis XIV view of what his relationship should be with the state and the law provides the possibility both for the action and the pardon. But a defeated Trump does not generate the fear for Republican congressmen and senators than an elected one does. Not only would the spell have been broken but Trump’s opportunity for revenge would be limited – and we can reasonably assume that if Trump does lose, especially if surrounded by scandal, then the Democrats will control both Houses, even if they’d be well short of 2/3rds in the Senate. That might not matter though. Senators’ terms are long and the political imperative to provide cover for a former president – a loser and potentially (in this scenario) a crook – would be greatly reduced. Indeed, there may well be a desire to draw a line under the political aberration that presidency represents. Opposition from Republicans shouldn’t be necessarily assumed.

There is, it has to be said, every chance we don’t end up exploring this particular constitutional oddity. Trump may not spend the rest of his days fighting off the law. He might go quietly into retirement at the end of his term (whenever that may be), or back to the media and property – and Washington might exhale a sigh of relief and try to get back to normality. But then again, he might not.

David Herdson