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Impeachment Trial and Pardons

Attorney Page Pate, a criminal and constitutional lawyer, frequently appears as a legal analyst for CNN and other media outlets. CNN interviewed Page about the second impeachment trial of President Donald Trump and the possibility of a self-pardon by the President.

The first issue discussed in this interview is the possible timing of President Trump’s impeachment trial. Page indicates that the timing of the trial could be a significant issue after the inauguration of President-Elect Joe Biden. Page explains that he thinks “…clearly, it’s going to be up to the Senate as to when they decide to start the trial. The trial has to happen, but the constitution does not set any specific date or time limit. It’s really up to the Senate. And with the Senate changing hands, and we’re gonna have a new majority leader, I know there’s gonna be some tension within the Senate leadership to want President-elect Biden’s agenda to be fully addressed before they get completely distracted by an impeachment trial…So there’s gonna be a lot of back and forth, perhaps they’re gonna bifurcate the Senate and have part of them listening to the trial and then part of them working on the agenda. It’s going to be one of the most important issues that the new Senate will face this year.”

Page is then asked about the constitutionality of the impeachment of a president after they have left office. He says that this is a “gray area” and acknowledges that some federal judges believe that it is in fact, unconstitutional. Page further explains that “The constitution clearly sets up impeachment as a way to remove someone like the President from office. So the argument’s pretty simple. If the President is already gone, if his term has already ended, then you can’t impeach him. He’s gone. But really, we have seen impeachment used in the past, in our history, for people who have already left office. We’ve already had President impeached by the House of Representatives, so the only thing that’s remaining is the trial. And so I think the better argument, and one that’s supported by history, is that you can have an impeachment trial even after the President has left office.”

Also on the topic of impeachment, Page agrees that impeachment is the only way Congress can prevent President Trump from running for President again in the future and says he thinks “impeachment’s important, to disqualify Trump from holding federal office again.”  He also says that he thinks it is important “to send a message that Congress and the American people will not tolerate the kind of actions that President Trump has been taking recently and, really, in the past, and needs to send a message. Because if impeachment’s going to mean anything, then Congress has to be able to move forward, courageously move forward, and impeach a President who has broken the law. So I think it’s important for the disqualification but also for the principle involved.”

Lastly, Page is asked if there is anything in the constitution to prevent President Trump from pardoning himself before he leaves office. Page responds, saying “Nobody can stop President Trump from pardoning himself. The question becomes, will that pardon be enforceable? And that’s gonna be a tough call, not just legally but politically. Will a Biden administration want to take the politically dangerous step of trying to prosecute a former President Trump? I don’t think they’re gonna do that because, given the distractions and the uncertainty. But I do believe if Trump pardons himself, that will make it more likely he’s prosecuted, not less. Because then, I think the Biden administration will feel the necessity to challenge the idea that a President can pardon himself and make him above the law. So I think if he tries a self-pardon, he’s more likely to get prosecuted, not less.”

 

TRANSCRIPT:

Christi: There is still no timeline as to when President Trump’s second impeachment trial might start. House Speaker Nancy Pelosi is expected to send that lone impeachment article to the Senate next week. She has declined to specify exactly when that’s gonna happen. But let’s talk to constitutional attorney Page Pate here. Page, good to see you this morning. You have said, you told our producer the timing of the impeachment trial becomes a major issue after the inauguration. How so?

Page: Well, Christi, I think, clearly, it’s going to be up to the Senate as to when they decide to start the trial. The trial has to happen, but the constitution does not set any specific date or time limit. It’s really up to the Senate. And with the Senate changing hands, and we’re gonna have a new majority leader, I know there’s gonna be some tension within the Senate leadership to want President-elect Biden’s agenda to be fully addressed before they get completely distracted by an impeachment trial.

So there’s gonna be a lot of back and forth, perhaps they’re gonna bifurcate the Senate and have part of them listening to the trial and then part of them working on the agenda. It’s going to be one of the most important issues that the new Senate will face this year.

Christi: Well, President Trump’s former attorney Alan Dershowitz has claimed it’s unconstitutional for a person to be impeached once they leave office. How much credence does that argument hold? And is there truth to that or is there a gray area here?

Page: There is a gray area, Christi, and it’s not just Dershowitz. There are some former federal judges who think he’s right. The constitution clearly sets up impeachment as a way to remove someone like the President from office. So the argument’s pretty simple. If the President is already gone, if his term has already ended, then you can’t impeach him. He’s gone. But really, we have seen impeachment used in the past, in our history, for people who have already left office.

We’ve already had President impeached by the House of Representatives, so the only thing that’s remaining is the trial. And so I think the better argument, and one that’s supported by history, is that you can have an impeachment trial even after the President has left office.

Christi: Based on precedent. So, an ABC News Washington Post poll finds more than half of America, about 56% of Americans who were polled, do feel that Congress needs to remove Trump from office and disqualify him from holding elected office in the future. The intention here, at this point, now, with only four days, four and a half days to go before he’s…before inauguration day and President-elect Biden comes in anyway, it seems like the intention is to make sure that he cannot run for office again. Is impeachment the only avenue by which Congress has to try to make that…to try to solidify that?

Page: Yes, it is. And so, I think impeachment’s important, to disqualify Trump from holding federal office again. And it’s also important, I think, to send a message that Congress and the American people will not tolerate the kind of actions that President Trump has been taking recently and, really, in the past, and needs to send a message. Because if impeachment’s going to mean anything, then Congress has to be able to move forward, courageously move forward, and impeach a President who has broken the law. So I think it’s important for the disqualification but also for the principle involved.

Christi: Okay. I wanna ask you, before I let you go, about the potential of self-pardons here. President still has four days to make this happen. I get this picture in my head of the President just going to the Oval Office and signing it and going, “Ohp, all right. It’s done. That’s it.”

Page: Right.

Christi: I’m wondering, what constitutional parameters are there, that are in place to guide the validity of the lack thereof of this happening?

Page: Nothing. I mean, that’s the short answer. Nobody can stop President Trump from pardoning himself. The question becomes, will that pardon be enforceable? And that’s gonna be a tough call, not just legally but politically. Will a Biden administration want to take the politically dangerous step of trying to prosecute a former President Trump? I don’t think they’re gonna do that because, given the distractions and the uncertainty.

But I do believe if Trump pardons himself, that will make it more likely he’s prosecuted, not less. Because then, I think the Biden administration will feel the necessity to challenge the idea that a President can pardon himself and make him above the law. So I think if he tries a self-pardon, he’s more likely to get prosecuted, not less.

Christi: Mm, all right. And set a precedent any way it goes. Page Pate, we appreciate you so much. Thank you.

Page: Thank you, Christi.

Christi: Good to see you this morning.