Big problems with this piece, which claims that impeached presidents can't pardon crimes linked to the articles of impeachment.
* It's an out-there argument, phrased with the confidence of a slam dunk.
Readers deserve to know: the vast weight of authority is against it.
1/8
* It's an out-there argument, phrased with the confidence of a slam dunk.
Readers deserve to know: the vast weight of authority is against it.
1/8
* The piece first said "many scholars agree" (as reproduced in Politico's tweet). That changed to "some scholars." Then the phrase was removed entirely.
Revisions are good—high praise to author Corey Brettschneider for that—but they should be noted. Do better, Politico.
2/8
Revisions are good—high praise to author Corey Brettschneider for that—but they should be noted. Do better, Politico.
2/8
* The piece relies on Madison's suggestion that the House can "suspend" a president pending trial. But the House didn't purport to suspend Trump—for good reason; Madison's idea is an outlier. And even Madison didn't suggest a suspension would survive a Senate acquittal.
3/8
3/8
* The piece misreads the "except in cases of impeachment" exception to the pardon power.
As this thread explains, it is extremely well-established what the exception means—that pardons cannot stop or undo impeachments or impeachment convictions:
4/8
As this thread explains, it is extremely well-established what the exception means—that pardons cannot stop or undo impeachments or impeachment convictions:
4/8
* The Framers were concerned about co-conspirator pardons. But they decided that rather than limit the pardon power, they would rely on impeachment and prosecution to hem in presidents.
Don't just take my word for it. Check out the sources here: press-pubs.uchicago.edu/founders/tocs/…
5/8
Don't just take my word for it. Check out the sources here: press-pubs.uchicago.edu/founders/tocs/…
5/8
* To support its "plain meaning" reading of the const'l text, the piece links to an op-ed. But the op-ed is about something else altogether (self-pardons, about which I've written a lot). Moreover, the op-ed offers *my* reading of the relevant text, not the Politico piece's.
6/8
6/8
* Oddly, the piece nowhere cites @jedshug and Ethan Leib's piece: washingtonpost.com/opinions/this-…
I think Jed and Ethan are wrong, but their piece is well-reasoned and creative, and doesn't fight against the tremendous weight of authority nearly as much as the Politico piece does.
7/8
I think Jed and Ethan are wrong, but their piece is well-reasoned and creative, and doesn't fight against the tremendous weight of authority nearly as much as the Politico piece does.
7/8
In sum, while the Politico piece surely will be welcomed by hopeful Trump opponents looking for ways to check him, it is exceedingly weak. No one should expect—let alone rely on—any court to agree with its central premises.
8/8
8/8
@jedshug I should note that while the Politico piece does not discuss Jed and Ethan's op-ed, it does provide a link to Jed and Ethan's law-review article on which the op-ed was based. I missed that link; I regret the error.
Addendum: here's another point that I should have made. I was too focused on the law in general and not on this case in particular.
9/8
9/8
