June 6, 2018

FLASHBACK, OCTOBER 28, 2016: If Hillary Is Indicted, President Clinton Could Pardon Herself and Congress Might be Helpless.

So, assuming Clinton follows the latter approach and issues the self-pardon, where does that leave Congress? Could the House of Representatives start impeachment proceedings based on the criminal indictments?

That answer to that question is a resounding “no.”

Under Article II, Section 4 of the Constitution, “The President… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The Constitution further provides that impeachment proceedings are to begin in the House of Representatives and if approved by a simple majority vote, the matter proceeds to the Senate for trial. When the president is tried, the Chief Justice presides over the Senate trial. A conviction requires a 2/3-majority vote and the Senate may impose punishment including barring the individual from holding future office. Although, the Senate is required to take an additional vote if it wishes to impose a ban on holding future office.

In Clinton’s case, however, the conduct underlying this hypothetical indictment occurred prior to her taking office. The House of Representatives, as far back as 1873, has determined that a person cannot be impeached based on conduct prior to them holding office. In other words, House precedent says a President Hillary Clinton could not be impeached as president for crimes related to the e-mail server or the Clinton Foundation.

In 1873, the House of Representatives considered impeaching the Vice President for crimes committed before he took office. After considering the matter, the House determined impeachment was only proper for crimes committed while in office.

Well, sure, if Hillary were president.

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