Associate Justice Antonin Scalia

In the matter of the United States Congress v. Dick Cheney and George W. Bush,  precedence is on the side of the president. In 1974 after the resignation of Richard M. Nixon as president of the United States,  President Gerald R. Ford issued a statement giving Nixon a full presidential pardon for whateve actions he might have taken while acting the capacity of his office.

Impeachment proceedings had begun against Nixon, meaning that under a strict constructionist view of the U. S. Constitution, he could not receive a presidential pardon (Article II, Section 2) but the country accepted Ford’s actions and the Congress, acting in its judicial capacity, also accepted this action. Therefore, the precedent is set. Congress has accepted the right of a Republican president to pardon his predecessor for the high crimes and misdemeanors for which he was impeached. For more than 30 years, it has been accepted that Ford pardoned Nixon to suddenly declare that this cannot happen is contradictory to the traditions of judicial precedence.

Furthermore,  President Bush did not issue the pardon until after he had declared a state of national emergency. Tradition dictates that once the president has declared a state of national emergency, his powers are restricted only to those specifically forbidden by the Constitution and the laws of land. Theodore Roosevelt, writing about the emergency powers of the president, said, “It was not only his right, but his duty to do anything that the needs of the Nation demand unless such action was forbidden by the Constitution or the laws”.

It can also be argued that because the President Pro Tempore of the Senate and Chief Justice John Roberts  had not issued the final certification of the Senate vote that the impeachment proceedings are still incomplete. The situation requires a look at what the framers intended when they used the word impeachment in Article II, Section 2 of the constitution. The word has been used interchangeably for the impeachment process and an impeachment verdict.

It appears now that the Congress is attempting to split hairs and argue that Nixon could be pardon because his impeachment was in process and that Cheney cannot be because the Senate has made its determination. Under the policy of national emergencies, American presidents since George Washington have used the status of a national emergency to justify dozens of actions which acted contrart to the perceived will of Congress. This action should be no different. In the words of Roosevelt, the president’s duty to do whatever ”the Nation demands” should be upheld.

(Part B) Congressional leaders are likely to argue that Roosevelt’s words should indeed be applied to this situation because of the final clause indicating that the emergency powers do not extend to actions which violate the Constitution. They will further argue that Article II, Section 2, is the overwhelming point of law in this matter. The article reads, in part, “and he shall have Power to grant Reprieves and Pardons for offenses against the United States, except in cases of Impeachment. ”

Given that there is a specific Constitutional exception for granting a pardon for impeachment, supporting the Presidnet’s position that Cheney should be allowed to stay in office is a difficult one. The matter of the signatures certifying the vote are irrelevant as the Constitution simply requires a vote of two-thirds of the Senate. The vote was taken and was witnessed as required by law by Chief Justice Roberts. The Constitution also provides that there are no appeals to the Senate’s decision. (Part C) In this case, it is very hard to come up with any argument for retaining the vice president, much less a strong one.

Ultimately, for any constructionalist, there can be no debate. The Constitution is very clear. There is no provision for reconsideration of impeachment. Once the vote is taken, the wording of the Constitution and therefore the law of the land is specific, after a two-thirds vote of the Senate, the offender is removed from office. The precedent set by Ford’s pardon is at best a footnote because it simply did not matter. Nixon had already resigned from public office and never intended to return to public service.