Corey Brettschneider and I published a piece in the Washington Post this morning arguing that a president cannot pardon himself for high crimes that are the subject of his own impeachment, nor can he pardon others directly connected to those crimes. This is a controversial view within the legal establishment but it has never been addressed by courts. We defend our view at length in an earlier piece this past summer in The Atlantic. The point of today’s piece is to urge Congress to adopt our interpretation, and to formally express this constitutional interpretation in service of fortifying its impeachment … Continue reading Impeachment and the Limits of the Pardon Power

Follow-up to my post here last week on the end of the rhetorical presidency on steroids, Lawfare has a detailed and interesting essay on the topic. Continue reading Twitter and Trump

Some months ago, Corey Brettschneider and I wrote a piece for The Atlantic arguing that the traditional interpretation of the pardon power — that it is unlimited but for one very narrow exception — that the President cannot pardon any impeachment charge or conviction. We argue that impeachment should be understood more broadly to imply 1) that a president cannot pardon himself and 2) he can’t pardon others for crimes directly connected to an impeachment investigation of himself. We argue that the debates during the Philadelphia convention do not evidence a clear view of the delegates on this matter — … Continue reading Limits to the Pardon Power

The best essay, so far, about the sources and meaning of the insurrection. Timothy Snyder took a lot of grief from sophisticated academics for his book On Tyranny and for his worry about the incipient American version of fascism. I am pretty sure that he takes no pleasure in the fact that he was right. This extraordinary piece by him in the New York Times is well worth reading. Continue reading The American Abyss

This is a moment of real peril for the polity. In well constructed constitutions the executive is designed to be the institution capable of contending with emergencies. But what if the executive, the president, is the emergency. How can we meet the emergency now? I answer this question in a piece I published late last night at The Bulwark. Please read, discuss and circulate. Relevant to our current conversation here on The Constitutionalist is the need for Congressional and Cabinet suppleness, nuance, and creativity in mustering the resources of the Constitution to meet the moment. The 25th Amendment is one … Continue reading Emergency Government