Before the pardon, Trump violated a well established political and legal norm by personally asking Attorney General Jeff Sessions to drop the criminal charge against Arpaio. Trump apparently backed off after Sessions demurred, but in breaking the story, the Washington Post quoted Chiraag Bains, a former senior counsel in the Justice Department's civil rights division, as calling Trump's call to Sessions "beyond the pale."
Former Attorney General Eric Holder had an apt if snarkier comment on Twitter. "Number of times over six years that President Obama called and asked me to think about dropping a case: ZERO." But a tone-deaf White House press secretary Sarah Huckabee Sanders saw nothing amiss. "It's only natural the president would have a discussion with administration lawyers about legal matters," Sanders was quoted as saying.
The president has the broadly stated power under Article II, section 2 of the Constitution to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The impeachment exception implies a separation-of-powers concern, limiting the president's power to override a congressional judgment to remove a federal official after a conviction for "high crimes and misdemeanors."
Trump's pardon of Arpaio for criminal contempt of court is apparently the first instance of a presidential pardon for violating a federal court order. The same separation-of-powers concern that underlies the impeachment exception ought to caution a president against using the pardon power to undermine a federal court's power to enforce its orders.
Instead, Trump has absolved Arpaio of flagrantly defying a federal judge's order to drop the Maricopa County sheriff's unconstitutional policy of racial profiling against suspected illegal immigrants. In Trump's eyes, his onetime comrade in arms in the birtherism controversy is not a scofflaw but a "patriot," his documented abuses in running the Maricopa County jail not worth a mention.
Presidential pardons are typically granted to defendants convicted under dubious circumstances, given unduly harsh sentences, or seen to be rehabilitated based on model conduct in prison. Politically motivated pardons, however, are not unheard of. The first president Bush granted pardons in his final month in office to six former Reagan administration officials who had been convicted of, for example, withholding information from Congress in the Iran-contra investigation.
Frank Bowman, a law professor at the University of Missouri, argued in an article in the online magazine Slate that Trump's pardon of Arpaio amounts to an impeachable offense. Bowman called the pardon "a direct attack on the constitutional powers of the judiciary." Trump's action, he went on, "threatens to undercut one of the indispensable, foundational norms of American constitutional order: the rule of law."
Bowman is legally correct, of course, in the sense that the House of Representatives has broad discretion to determine what counts as an impeachable offense. Politically, however, the current Republican-majority House of Representatives has shown even less interest in challenging Trump than the largely supine GOP-controlled Senate. Even with Trump's approval at the historic low level of 34 percent, impeachment is a dead letter in the House and conviction equally impossible in the Senate.
Apart from the pardon, Trump's personal intervention in a pending criminal case ought also to be listed as an impeachable offense. Recall that the House Judiciary Committee in 1974 listed President Richard M. Nixon's intervention in the criminal justice system and the Internal Revenue Service's enforcement of tax laws as one of the particulars in Article II of the four articles of impeachment.
Nixon, who famously maintained an "enemies list" of political critics and opponents, was accused of having directed the IRS to initiate or conduct tax audits "in a discriminatory manner." He was also charged with having "knowingly misused the executive power by interfering with agencies of the executive branch," including the CIA, the FBI, the Justice Department's criminal division, and the Watergate special prosecution force.
Trump's interference in Arpaio's case represents abuse for the opposite purpose: preferential treatment for a political friend rather than discriminatory treatment for a political enemy. But his action represents the same constitutional violation laid to Nixon. As the ex-DOJ official Bains put it to the Post, Trump "has a sense that the chief executive controls everything in the executive branch, including the exercise of criminal power. And that is just not the way the system is set up."
Trump's prospective pardon of Arpaio played well to the crowd at the campaign-style rally he held in Phoenix before the formal announcement, but it has played poorly in virtually all other quarters. The conservative Washington Times gave its blessing a week before the actual pardon, but House Speaker Paul Ryan distanced himself after the fact by saying that it would have been better for Trump to have allowed the appellate process to continue.
Among prominent columnists, criticism came from both sides. The conservative Michael Gerson called the pardon "a further step in Trump’s normalization and entrenchment of bigotry in our public life," while the liberal E. J. Dionne called it Trump's "largest single step toward autocracy." Bigotry and autocracy: reprehensible, no doubt, and impeachable but for the lack of will on Capitol Hill.
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