Black’s prescient hypothetical about absurd abuses of the pardon power is worth revisiting in the face of startling claims about the president’s power to pardon as he pleases. Much like the assertion that the president can fire (almost) whomever he pleases, it is a claim sometimes framed in seemingly reasonable terms. For example, this week, Adam Liptak wrote in the New York Times that Trump’s pardon of Joe Arpaio, the former sheriff of Maricopa County, “was almost certainly lawful” because “[t]he Constitution gives presidents extremely broad power to grant pardons.” Josh Blackman made a similar assertion here at Lawfare. But characterizing presidential actions that raise delicate abuse-of-power questions as “lawful” just because they are in line with one clause of the Constitution is more confusing than helpful.
The pardon clause itself is only twenty words long and places almost no limits on the president’s pardon use—but that doesn’t mean the rest of the Constitution has nothing to say about it. Consider Article II, section 3, which provides that the president “shall take Care that the Laws be faithfully executed.” The Founders clearly believed the pardon power and other sweeping executive authorities must be used in accordance with the president’s “take Care” obligation—and provided Congress with the firepower to ensure it. James Madison was a proponent of giving the president absolute authority in removing executive officers not because this would protect him from impeachment but because it would subject him to it; Madison specifically argued that this concentration of authority would ensure that if the president allowed his officers “to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses,” he could be impeached.
The more general point here is that the sweeping nature of the president’s power doesn’t insulate his use of that power from congressional scrutiny. The very opposite is true: by definition, a generous dose of power comes with serious potential for abuse, and impeachment may sometimes be the only way to protect the country against a president who exploits his office to commit such abuse.
It is a mistake of the highest order to confuse the president’s immense authority with the idea that he cannot be called to account, or even kicked out of office, for improperly exercising it.
But it’s not a mistake the Founders made.
Much like James Madison, James Wilson argued that the executive authority must lie with one man alone because this would ensure his accountability, not shield him from it. “[W]e have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes.” Wilson concluded, “[F]ar from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”