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At the time of asking this question, President Trump has been impeached by the US House, but no trial date set by the US Senate. However, if Trump were to grant blanket pardons to all those who participated in the US Capitol riot today (Jan 15 2020) and he himself was convicted of inciting the same insurrection, would the pardon stand or would it be null and void?

David Siegel
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user36296
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The pardons would stand and continue to be valid.

There is a minority view that the "except in cases of impeachment" language in the pardon clause of the U.S. Constitution deprives a President of the pardon power after impeachment until there is a U.S. Senate non-conviction.

But the majority view is that this clause merely states that the loss of political office and prohibition on seeking future political office resulting from a U.S. Senate conviction in an impeachment trial cannot be removed via the pardon power. In the majority view, a President has all of the powers and authority of the office, including the pardon power, until the moment of a U.S. Senate conviction following a impeachment by the U.S. House (or the end of his term of office due to resignation or expiration of the President's term of office).

Neither view, of course, has ever been resolved authoritatively in the courts because it has never come up before historically.

Also, a group pardon would not absolve the President himself of criminal liability. The majority view (again never tested because no President has ever attempted to do so) is that a President may not pardon himself at all. But all other persons who benefit from the pardon would be relieved of criminal liability as a result.

ohwilleke
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    Thank you. There is much that is still untested and/or theoretical. I was curious if the pardons would be revoked if Trump was convicted. – user36296 Jan 16 '21 at 18:00
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If Trump were to be convicted by the Senate, either before or after he leaves office, that would not invalidate any pardons he might have previously issued, including for participation in the events of 6 Jan 2020. The president, while in office, can pardon any crime under US Federal law (which includes local DC law, because DC is a federal district). Such pardons are not reviewable or cancelable by Congress, nor by a future President. In theory a Constitutional Amendment might undo them, but that has never been done.

(This answer takes no position on whether an impeachment trial could continue after Trump's term of office ends, as that question appears to have no clearcut answer at this time, and is not part of the question asked.)

However such a pardon would not remove the restriction in section 3 of the 14th amendment that prevents anyone who has engaged in insurrection or rebellion after having sworn to uphold the constitution from holding office. Only Congress can remove that bar. But it probably would not apply to most of those who entered the Capitol, as most would not have previously sworn to support the US Constitution.

David Siegel
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  • The original purpose of this part in the 14th Amendment was to lock out pre-Civil War politicians from holding office in any government at any level of the Federation. I am sure a quick google will turn up Confederate Veterans of the Civil war who later had assumed political office despite participating in the Civil War... because at the time of their participation, they had yet to swear an Oath of Alligence to the United States Constitution. – hszmv Jan 15 '21 at 17:15
  • @hszmv Yes this is all correct (and I pointed out the history in another thread here). Also Congress eventually pased a general amnesty removing all the confederate disabilities under Ad 14 sec 3. But at least 2 known intruders were serving state legislators, and this might apply to them and perhaps to active duty military officers. And it might apply to some others not yet reported on. – David Siegel Jan 15 '21 at 17:27
  • There's also the issue with Confederate officer holders that if used, it might be an ex post facto law. So former politicans may have been allowed to return anyway, but with a stern warning they weren't getting away with this next time they tried it. – hszmv Jan 15 '21 at 17:56
  • @hszmv The rule against ex post facto laws would not apply to a constitutional provision. But in any case it only applies to laws creating crimes. Ad 14 sec 3 did not create any crime, it merely added a limitation to who could hold office in future. No criminal penalty. People were barred from office under this provision. The amnesty was part of the Hayes/tilden compromise IIRC. – David Siegel Jan 15 '21 at 18:03
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No. Presidential Pardons are not reviewable as part of impeachment process (unless a pardon was the cause for an impeachment article, even then, it is not recinded following a conviction.). A conviction on impeachment can only server to remove the President (or other officer) from office and can have no other punishment attached. The purpose is to remove from office so one could stand trial for a criminal act. A resolution barring future service in office may be passed after conviction with a 51% majority vote.

It is highly unlikely Trump will be convicted at trial (given that Impeachment process stops when the officer is removed from office by other means) and thus the likelyhood of a trial beginning, let alone concluding is not likely to occur.

hszmv
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    Can you expand on why the impeachment process would stop? As you indicated, one element of the impeachment process includes the ability to bar someone from future public service. As written, this seems to suggest that such a penalty isn't feasible so long as the defendant resigns prior to the impeachment being fully completed. – Pyrotechnical Jan 15 '21 at 15:41
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    "given that Impeachment process stops when the officer is removed from office by other means": I believe this is incorrect. It's true that in several past cases, the process has been dropped when the officer left office, but in the case of William Belknap, his Senate trial actually took place after he had resigned, and continued to completion. And certainly in the present case, Congress shows every intention of carrying on with the trial process after Trump leaves office. – Nate Eldredge Jan 15 '21 at 15:43
  • There is no court decision or clear precedent that says that "the Impeachment process stops when the officer is removed from office by other means":. Legal scholars have given opinions on both sides of the issue. The William Belknap, case suggests otherwise. It cannot be simply assumed. – David Siegel Jan 15 '21 at 16:40
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    @NateEldredge: Your own link cites the fact that Belknap left office as a deciding factor in the vote leading to his aquittal. – hszmv Jan 15 '21 at 16:41
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    @DavidSiegel: U.S. Constitution and jurisprudence is quite clear that for any court proceeding (The Senate being the High Court of Impeachment, it counts here) that the relief sought must be actually granted and courts can't hear cases where it cannot. Since Impeachment relief can only be granted in the form of immediate removal from office, the inability to remove Trump from an office left renders the trial moot. Since there has been no conviction on this line and likely won't, This could be a rare challenge that SCOTUS will review, as it is a question of law, not of politics. – hszmv Jan 15 '21 at 16:46
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    @hszmv The relief sought in an impeachment proceeding includes both removal from office and disqualification for future office, and the latter could certainly occur. Nor is the rule you mention constitutional, it is part of the common law. the Constitutional "case or controversy" requirement might be held to include it, but that applies only to article III courts, which the Senate sitting as a court of impeachment is not. – David Siegel Jan 15 '21 at 16:54
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    Well, in the Belknap case, the Senate voted to decide whether it had jurisdiction post-resignation, and determined that it did. And although it's certainly true that some Senators' votes to acquit may have been influenced by his resignation, still more than half voted to convict. The resignation didn't by any means "stop the process". – Nate Eldredge Jan 15 '21 at 16:56
  • Actually, in Belknap's case, it seems that the House impeachment also was passed after his resignation. – Nate Eldredge Jan 15 '21 at 17:01
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    And in every other case where the impeached official did resign, the process stopped (Including Nixon). So Belknap clearly doesn't fall under a case law setter, but an untested violation of case law. By aquittal, there's no need to challenge the validity of Jurisdiction to SCOTUS because that's wasting everyone's time. The first Impeachment actually was refused a trial because the impeached officer was expelled the same day the articles were voted on. – hszmv Jan 15 '21 at 17:02
  • @NateEldredge: To wit, the Belkamp does not settle the matter because the question of "Was Congress Right to Impeach a resigned officer under the rule of law" never succinclty answered through appellant processes available. Had Belkamp been convicted, it would be a matter of SCOTUS to judge the question (they could choose to hear it and make a decision or refuse to hear it, letting this Senate precedence stand.). But since SCOTUS has yet to hear the argument, it, the precedence of Belkamp must be weighed agains the precedence of later cases where it was always dropped as matter of course. – hszmv Jan 15 '21 at 17:10
  • @NateEldredge: There have been similar situations since Belkamp where the officer resigned before the verdict was rendered and the process stopped for mootness. There has never, until this attempt, been an attempted reversal. – hszmv Jan 15 '21 at 17:12
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    Under your logic there would never be a disqualification since the removal (or resignation) stops the process. For the option of disqualification to mean anything the office holder no longing holding office can't automatically stop the proceedings. – George White Jan 15 '21 at 19:51
  • @GeorgeWhite: That is correct. You can only disqualify with an conviction of Impeachment. You cannot hold the proceedings merely to disqualify someone from office. You may disqualify someone from office IF AND ONLY IF you convict them and remove them from office. – hszmv Jan 15 '21 at 20:00
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    If your position is that a resignation just before the impeachment makes the disqualification option disappear then the disqualification never had any true meaning. Something written to law is presumed to have meaning QED, your position is quite weak. – George White Jan 15 '21 at 20:17
  • Impeachmend does not stop as he is out of office, he can still be disqualified for the future. – Trish Jan 15 '21 at 22:45
  • @Trish: That's called "Bill of Attainer" and is specifically a denied power in the U.S. Constitution. – hszmv Jan 19 '21 at 13:40
  • @GeorgeWhite: Constitution specifically mentions Impeachment can only be used to remove from office. You can Remove AND barr from future office and Remove AND not barr from future office, but you cannot Remove OR Barr from Future Office. – hszmv Jan 19 '21 at 13:42
  • @hszmv - I'm surprised you are so adamant on a point that is at least disputed by serious scholars of constitutional law. – George White Jan 19 '21 at 18:20
  • @GeorgeWhite: I could say the same about you and unlike you. The fact you ignore is that the one case was an aquittal which means the precendence was not created. You don't get to claim it can be done when your example fails in a conviction. That's not how precedence works. – hszmv Jan 19 '21 at 18:34
  • See This 124 page law review article on the Constitutionality of Late Impeachment. https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1022&context=facpubs from 2001. – George White Jan 19 '21 at 19:25
  • Or 1 hour lawfare recent podcast with the author https://www.lawfareblog.com/lawfare-podcast-late-impeachments – George White Jan 19 '21 at 19:27
  • @GeorgeWhite I'll take Alan Dershowitz's statements supporting my argument over your blogs. I'll dig up my list of other prominant legal scholars who refute you when not at work. – hszmv Jan 19 '21 at 19:56
  • @GeorgeWhite: And while I can't read your cited examples, color me shocked if they actually acknowledge that the precedent that impeachment is moot when the office holder leaves has been upheld in every post Belknap Impeachment to date, which would count as refuting Belknap's precenence setting nature on this matter. New law overrides old law in every other example of precedent in U.S. Jurisprudence. – hszmv Jan 19 '21 at 20:00
  • @hszmv congress has never promulgated a formal determination of the principle that "impeachment is moot when the office holder leaves", nor is congress bound by precedent unless it chooses to be. Impeachment trials aren't judicial, and they don't count as "jurisprudence." – phoog Jan 19 '21 at 21:02
  • The law review article is is not a blog post and is from way before current events which gives it some authority by disinterest in the current outcomes. Like any good law review article it does not say there is a 100% clear answer. This is lacking from anything Dershowitz or anyone else says now. – George White Jan 20 '21 at 00:02