Yet another reason we need impeachment hearings: abusing the pardon power

On Friday evening, August 25, President Trump issued a presidential pardon to Joe Arpaio, the former sheriff of Maricopa County, Arizona. This pardon shocks the conscience and constitutes an abuse of power warranting hearings on impeachment.

Background

For over 20 years, Arpaio had run the Maricopa County Sheriff’s Office with shocking cruelty and lawlessness, particularly against Latinos. In 2011, the U.S. Department of Justice found in 2011 that the Sheriff’s Office engaged in systemic unconstitutional policing. Later in 2011, a federal judge in Arizona issued a preliminary injunction barring the Sheriff’s Office from enforcing federal immigration law or from detaining persons they believed to be in the country without authorization but against whom they had no state charges. Arpaio refused to stop, even after a 2012 court decision ruling that the Sheriff’s Office had violated the constitutional rights of Latinos by targeting them during raids and traffic stops, and in May 2016, the judge ruled he was in civil contempt of court for deliberately disobeying the order.

The judge also referred the question to a second federal judge in Arizona for an investigation of criminal contempt. On July 31, 2017, after a five-day trial, the judge determined that Arpaio had “willfully violated the order by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed,” and found him guilty of criminal contempt of court. Sentencing was set for October.

President Trump had not been happy with this course of events. In the spring, Trump had asked Attorney General Sessions whether the Department of Justice might abandon the criminal contempt case; when rebuffed, Trump decided to let the case go to trial with the plan of pardoning Arpaio if he was convicted.

Two weeks after the verdict, Trump told Fox News that he was considering a pardon for Arpaio, and that Arpaio “doesn’t deserve to be treated this way” because he “has protected people from crimes and saved lives.” On August 22, just days after the horrifying white supremacist rally in Charlottesville, Virginia, Trump rhetorically asked a Phoenix campaign audience, “Was Sheriff Joe convicted for doing his job?”

On August 25, he issued a pardon. In a two-paragraph statement, the White House said that “Throughout his time as Sheriff, Arpaio continued his life’s work of protecting the public from the scourges of crime and illegal immigration. Sheriff Joe Arpaio is now eighty-five years old, and after more than fifty years of admirable service to our Nation, he is worthy candidate for a Presidential pardon.” Trump also added in a tweet, “He kept Arizona safe!”

Why this pardon abuses the pardon power

The presidential pardon power is broad. However, there are lines that must not be crossed. The pardon of Arpaio abuses the pardon power as it “sends a message to Latinos that they do not deserve equal rights, and affirms to the judiciary that Trump has no respect for the rule of law.” As one law professor noted before the pardon issued:

An Arpaio pardon would express presidential contempt for the Constitution. Arpaio didn’t just violate a law passed by Congress. His actions defied the Constitution itself, the bedrock of the entire system of government. For Trump to say that this violation is excusable would threaten the very structure on which his right to pardon is based.

Fundamentally, pardoning Arpaio would also undermine the rule of law itself.

The only way the legal system can operate is if law enforcement officials do what the courts tell them. Judges don’t carry guns or enforce their own orders. That’s the job of law enforcement. . . . When a sheriff ignores the courts, he becomes a law unto himself. The courts’ only available recourse is to sanction the sheriff. If the president blocks the courts from making the sheriff follow the law, then the president is breaking the basic structure of the legal order.

In other words, the pardon has the effect and purpose of “devalu[ing] constitutional and statutory protections of a vulnerable minority” and “undercut[ting] the power of the judiciary to enforce the law against officials who believe they can violate it with impunity.” Government officials who are contemplating or engaged in abusive practices now know that the federal courts pose little threat to them—the president will pardon them if they get into trouble.

Why this is grounds for impeachment

In the Virginia debates over whether to ratify the Constitution, George Mason (who was opposed to the Constitution) criticized the pardon power, arguing in 1788: “Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”

James Madison (sometimes called the “Father of the Constitution”) replied: “There is one security in this case to which gentlemen may not have adverted: if 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; they can suspend him when suspected, and the power will devolve on the Vice-President. . . . This is a great security.”

That is the risk presented here. The pardon presents “a crisis in enforcement of the rule of law,” and as it is “a direct assault on core constitutional rights, statutory civil rights laws of the United States, and on the authority of courts to enforce those laws,” it “threatens constitutional civil liberties generally” and “threatens to undercut one of indispensable foundational norms of American constitutional order — the rule of law.” Among other things, it also suggests that Trump, who has already shown a willingness to obstruct justice with regard to the Russia investigation, will not hesitate to use the pardon power to stymie the special counsel’s investigation.

Trump’s abuse of the pardon power raises the exact danger that George Mason warned against, and justifies the preventive measure that James Madison called “a great security”: when a president abuses the pardon power and puts the very rule of law at risk, “the House of Representatives can impeach him.”

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