I came across this interesting bit of history while trolling through the Washington Post’s Clinton impeachment archives looking for Libby parallels.
It’s a discussion of how the framers dealt with the impeachment and pardon powers during the Constitutional Convention. Here’s how James Madison addressed one concern:
George Mason argued that the President might use his pardoning power to “pardon crimes which were advised by himself” or, before indictment or conviction, “to stop inquiry and prevent detection.” James Madison responded: “[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty….”
It’s a matter of opinion whether the Libby commutation is so wrongful that it deserves impeachment; after all, we probably wouldn’t impeach the president for commuting a speeding ticket even if it was transparently immoral. And I believe impeachment efforts should have a high bar to get over. On a practical level, Bush is so close to the end of his term that impeachment proceedings are probably pointless anyway.
But it’s worth noting that the Framers didn’t think the impeachment bar was as high as we do today. They seemed to think it could be resorted to freely and that the necessity of supermajorities to convict was a sufficiently large hurdle to prevent abuse.
Madison, for example, appears to argue that pardoning an administration official is so injurious to the Constitution and the rule of law that it’s an impeachable offense. Indeed, Madison argues that a president could be impeached if Congress merely suspects the President would shelter a criminal to which he is connected. That’s not a very high bar at all.