If SCOTUS rules against self-pardons, which justices would be in the majority?

[Torie]

POTUS has no power to pardon himself for impeachable offenses. What offenses would Trump pardon himself over that were not impeachable offenses that are in play?  In this context, SCOTUS I think would give a broad definition of what constitutes an impeachable offense. Sure, if Trump got arrested for using a prostitute or possession of pot (assuming they were federal crimes), he could pardon himself as to those "crimes."  But for colluding with Russia attempting to steal an election, or obstruction of justice with respect to an investigation about himself? No. If he pardoned himself for that, I think the SCOTUS vote invalidating the self pardon would be 9-0. Otherwise, Trump could not be prosecuted after being impeached and convicted and removed from office.

[Torie]

Good question. My take is the Court has the power to determine what is an impeachable offense (enough as it were to issue an inditement based on "reasonable" cause, which is a fairly low bar), for purposes of the self pardon issue, but has no power to second guess the House voting out the impeachment, nor the Senate when deciding whether or not to convict. It would make no sense for the House to be voting what is impeachable for purposes of negating a self pardon.

On the other hand, perhaps if the House votes out an impeachment, a prior self pardon by Trump would be negated. That resolution is unsatisfactory in the sense the the legality of the self pardon remains in limbo unless and until the House acts. But maybe it doesn't matter if its legality is in limbo, because a sitting POTUS probably cannot be indicted and tried. But that leaves the issue of whether the POTUS can be prosecuted after he leaves office. At that point, unless he was impeached, the issue of whether the self pardon is legal will have to be decided by the Courts. So there is no escape from the Courts having to decide this issue one way or the other.

I think I changed my mind about three time as I typed this, and different angles to this puppy popped into my mind. How mentally exhausting. I need some "medication" now I think.

[Torie]

Good question. My take is the Court has the power to determine what is an impeachable offense (enough as it were to issue an inditement based on "reasonable" cause, which is a fairly low bar), for purposes of the self pardon issue, but has no power to second guess the House voting out the impeachment, nor the Senate when deciding whether or not to convict. It would make no sense for the House to be voting what is impeachable for purposes of negating a self pardon.

On the other hand, perhaps if the House votes out an impeachment, a prior self pardon by Trump would be negated. That resolution is unsatisfactory in the sense the the legality of the self pardon remains in limbo unless and until the House acts. But maybe it doesn't matter if its legality is in limbo, because a sitting POTUS probably cannot be indicted and tried. But that leaves the issue of whether the POTUS can be prosecuted after he leaves office. At that point, unless he was impeached, the issue of whether the self pardon is legal will have to be decided by the Courts. So there is no escape from the Courts having to decide this issue one way or the other.

I think I changed my mind about three time as I typed this, and different angles to this puppy popped into my mind. How mentally exhausting. I need some "medication" now I think.

Well, agree to disagree then I suppose lol because the way I see it, Congress alone could decide for itself what constitutes a "high crime or misdemeanor" since while, yes, the Supreme Court is the ultimate intrepreter of the Constitution a matter (i.e. impeachment) is nonjusticiable when there's a constitutional commitment of the issue to a coordinate political department (i.e. Congress).

Just to be clear, the House can impeach for anything, including the color of Trump's hair, and SCOTUS cannot second guess. But after POTUS leaves office, and is indicted, then the issue is whether or not the self pardon is valid. There I think the courts can adjudicate for this purpose whether the crime that was self pardoned is or is not an impeachable offense. The House is out of the loop at that point obviously.