Congress can prevent or deter the most egregious abuses of the pardon power, while encouraging future presidents to adhere more closely to norms of process and restraint.
Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic.
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The Trump Impeachment and the Question of Precedent, Part II: The Trouble With Alan Dershowitz’s ‘Constitutional Argument’
Alan Dershowitz and Sen. Mitch McConnell are helping each other set an impeachment precedent in which there would be no room for removing a president for serious abuse of power.
In speeches sounding the alarm about “toxic” precedent, Sen. Mitch McConnell has set forth a questionable view of the law of impeachment with serious implications for the future of this constitutional remedy.
Editor's Note: This annoucement is crossposted with Just Security.
A decision with limited immediate consequences could have more impact over the long run in elevating the role of the president’s lawyers in future conflicts with Congress.
Impeachment is both a political and a legal process. It is not unconstrained by precedent, nor is it controlled by it. In the course of impeachment, legislators may be guided by a sense of constitutional responsibility, but they also keep their eye on public opinion polls. They are sensitive to the constitutional history they are writing. Lawmakers also prefer reelection to defeat. Nothing they say in one moment about process or substance may hold under the pressure of events or swings in public sentiment.
The aggressive letter from the White House counsel to Congress, announcing that the president will not cooperate with the impeachment inquiry, is further evidence of the deterioration of norms in the conduct of senior government positions.