It appears that the person who was upset about my discussion of the interaction between the pardon power and impeachment last night remains upset (46-tweet-thread upset, in fact) about it today. https://twitter.com/KarenTink6/status/1343233531086995456

I'm not going to respond to every tweet in the thread, or even most, but I think it's worth pointing out a few places where the arguments being made are so strained that they become self-defeating.

Because there are two 'camps.' There's the law, and then there's the Seth Abramson wishcasting camp that distorts the law in ways that will further outrage people when the real doesn't do what Seth convinced them it should.

The Seth camp is dangerous. https://twitter.com/KarenTink6/status/1343233534895353859?s=20

To be clear, there are some legitimate debates about the scope of the pardon. There is an open question regarding whether self-pardons are permissible, and there's a question regarding whether the President could crime by pardoning in order to obstruct justice. That's real.

The idea that the President cannot pardon when there's some connection between the pardon and impeachment is not real. That's just a bad legal take. It's an aggressive misreading of - well, of basically everything.

The @KarenTink6's thread is a bit convoluted, so let me sum up the dispute:
1: Some very wrong people think that pardons of anything tied to an impeachment inquiry are invalid;
2: They are not. The impeachment can't be pardoned; underlying crimes can be.

The broad "nothing touching impeachment" answer can only be reached by deliberately misunderstanding what "cases of impeachment" are, despite both the text of the Constitution and the Federalist Papers being reasonably clear.

The Constitution limits punishments for impeachment to removal from office and subsequent disqualification, but specifies that the convicted party is subject to subsequent legal proceedings.

Now, as Karen both helpfully and self-defeatingly points out, a 'case' is, in law, an instance of litigation. Impeachment proceedings, which involve impeachment followed by trial are one instance of litigation. https://twitter.com/KarenTink6/status/1343242225761718272?s=20

Subsequent criminal proceedings, which require, as the Constitution makes clear, a separate indictment, trial, and conviction before punishment can be imposed, would be a different instance of litigation.

A different case.

It's honestly difficult for me to see how you get from "the president can pardon except in cases of impeachment" to "the current batch of corrupt pardons" are "NULL AND VOID" particularly given that none of those pardoned were the subject of impeachment proceedings.

But the key misunderstanding seems to be somewhere in the tweets in this screenshot, which is mangling the interpretation of (I think) Federalist 69.

I'd hope that the misread is obvious.

If it's not, it's here: "could shelter no offender, in any degree, from the effects of impeachment and conviction."

Subsequent criminal prosecution isn't an effect of impeachment and conviction. Art 1, Sec 3, Cl 7 strictly limits the *effects* of impeachment and conviction.

It also makes it clear that a subsequent criminal prosecution is possible - but that's not an effect of the impeachment and conviction; it's a separate set of consequences for the crime.

Anyway, I wanted to try and clarify this because it seems to be a persistent misunderstanding, and it's one that I think is as harmful in its own way as the "Pence can totes steal the election by losing the mail" stuff.

I get that people are pissed off by the pardons (I am too) and that there's a desire to see Trump punished for the harm he's caused.

But if that's gonna happen - and it might not - it's got to be consistent with the rule of law or we'll just be adding to his destruction.

/fin