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Trump, The Arpaio Pardon, And The Constitution

constitution-preamble-quill-pen

In the days since President Trump issued his pardon of former Maricopa County, Arizona Sheriff Joe Arpaio on Friday, there has been much criticism of the move from both sides of the political aisle. As expected, Democrats such as Senators Al Franken, Chuck Schumer, and other Democrats on Capitol Hill have been overwhelmingly critical of the President’s exercise of his pardon power. Additionally, criticism has come from the Republican side of the aisle, with notable examples of such criticism coming from Arizona’s GOP Senators John McCain and Jeff Flake, as well as House Speaker Paul Ryan. Additionally, there have been criticisms from pundits and commentators on both sides of the aisle who have noted Arpaio’s long history of violating the civil liberties of the citizens of Maricopa County and his disregard for order from Federal District Court Judges which, of course, are the reason he was convicted earlier this month. One notable example of such criticism came from conservative pundit Jon Gabriel, who lives in Maricopa County and notes how observing Arpaio and his department with his own eyes ultimately led him to realize years ago that the man was not the conservative hero that some on the right still consider him to be, but rather a petty tyrant who used his office to violate the rights of the residents of his jurisdiction and ignore real crime in the county while pursuing his crusades, which mainly involved immigration, Barack Obama’s birth certificate, and profiting from the fame that national media attention brought him.

In addition to these criticisms, though, another debate has emerged regarding the pardon and the question of whether or not President Trump’s exercise of that power was proper, and it’s a debate that began before the pardon was actually issued. Essentially, that argument boils down to the question of whether or not it would be appropriate, or even legal, for Trump to pardon Arpaio on his contempt of court charge. At first glance, it seems like a difficult argument to make once you take a look at the actual text of the Constitution. Article II, Section 2 of the Constitution provides in its final sentence that the President shall have the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Based on this text, there are only two Constitutional limitations on the pardon power. First, the President can only pardon someone for violations of Federal law, a provision that makes sense given that legally the individual states and the Federal Government are, under American law, separate sovereigns that have their own respective rights and power except as limited by the Constitution itself. A President can no more pardon someone convicted or accused of violating state law than a Governor can pardon someone convicted or accused of violating Federal law. The second limitation simply says that a Presidential pardon does not limit the authority of Congress to impeach a Federal official and remove them from office. Beyond that, there are effectively no legal limitations on a President’s ability to pardon anyone who is either accused of, charged with, or convicted of violating a Federal law. Despite the clear text of the Constitution, though, several legal scholars have argued that Trump’s pardon of Arpaio is improper, and some are even suggesting that it is an impeachable offense.

Harvard Law Professor Noah Feldman appears to be among the first that made this argument in a Bloomberg View column published before the column was announced. As Feldman points out, Arpaio was convicted of willfully violating the order of a Federal District Court Judge regarding the operation of his department. This order, handed down by Judge G. Murray Snow. That order commanded Arpaio to stop running “saturation patrols” in which his deputies stopped almost exclusively people who appeared to be Latino and detained those they determined were undocumented stops. Judge Snow found that these warrantless stops, along with the detention, was unconstitutional. Arpaio refused to comply with this Order and continually flouted it in a public manner that seemed to be an “in your face” response to the Court. When the Plaintiffs brought these facts to the Judge’s attention, he held extensive evidentiary hearings after which he issued rulings that found Arpaio in civil contempt of court. Most crucially, Snow found that Arpaio’s violation was intentional, a key part of what could be a criminal contempt charge. When that failed to stop Arpaio and his department from engaging in such conduct, the matter was referred to another Federal Judge named Susan Bolton. It was Judge Bolton who found Arpaio guilty of criminal contempt earlier this month. Based on these facts, Feldman argues that pardoning Arpaio would “show contempt for the Constitution”:

It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society.

It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy, the way George H.W. Bush pardoned Iran-Contra participants, including Caspar Weinberger and five others.

But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.

Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.

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.

(…)

From this analysis it follows directly that pardoning Arpaio would be a wrongful act under the Constitution. There would be no immediate constitutional crisis because, legally speaking, Trump has the power to issue the pardon.

But the pardon would trigger a different sort of crisis: a crisis in enforcement of the rule of law.

The Constitution isn’t perfect. It offers only one remedy for a president who abuses the pardon power to break the system itself. That remedy is impeachment.

Bob Bauer, who formerly served as White House Counsel to President Obama and has returned to private practice since the end of the Administration, makes a similar argument to Feldman’s in a post at Lawfare that also preceded the pardon itself. Bauer expanded on this argument in an Op-Ed for The Chicago Tribune that was published last Friday just hours before Trump issued the Arpaio pardon. Northwestern University Law Professor Martin Redish, meanwhile, argues that the nature of Arpaio’s crime should impose a limit on the pardon power in and of itself:

Under the Constitution one cannot be deprived of liberty without a court ruling upon the legality of the detention. The power of courts to restrain government officers from depriving citizens of liberty absent judicial process is the only meaningful way courts have to enforce important constitutional protections. But if the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power.

I am not suggesting that the pardon power itself provides for a due process exception. To the contrary, on its face the pardon power appears virtually unlimited. But as a principle of constitutional law, anything in the body of the Constitution inconsistent with the directive of an amendment is necessarily pre-empted or modified by that amendment. If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation.

I admit that this is a novel theory. There’s no Supreme Court decision, at least that I know of, that deals specifically with the extent to which the president may employ his pardon power in this way.

But if the president can immunize his agents in this manner, the courts will effectively lose any meaningful authority to protect constitutional rights against invasion by the executive branch. This is surely not the result contemplated by those who drafted and ratified the Fifth Amendment, and surely not the result dictated by precepts of constitutional democracy. All that would remain to the courts by way of enforcement would be the possibility of civil damage awards, hardly an effective means of stopping or deterring invasions of the right to liberty.

Taking matters a step further, University of Missouri Law Professor Frank Bowman argues that Trump committed an impeachable offense in pardoning Arpaio:

There has long been a careful procedure in place for the pardon process: Individuals submit a request for clemency, and the Justice Department recommends good candidates based on pre-approved guidelines. Trump didn’t bother even to pretend to use this system to pardon Arpaio. The sheriff hadn’t formally requested one, the usual first step in the process. And he hadn’t yet been sentenced. Typically, an individual’s sentence plays a key role in the president’s clemency decision; President Barack Obama, for example, commuted the sentences of many prisoners who, he felt, had served enough time. Trump didn’t need to wait for a sentence.

But Trump’s pardon of the sheriff is also troubling for its timing. The political nature of the pardon is obvious; it vividly demonstrates Trump’s willingness to abuse his presidential powers in order to let his friends and supporters off the hook. But just as notable is that it came right on the heels of the president’s Phoenix rally, as the president is being pressured to disavow the most racist elements of his base. What’s even worse is the fact that the pardon arrived without review, and before Arpaio was even sentenced for defying the courts. As my colleague Dahlia Lithwick has written, Arpaio’s conviction was a test for how long and how willing Trump will be to abide judicial oversight. He flunked it. It now seems clear that many future beneficiaries of the president’s clemency will be his political allies—and that he might not wait to for them to be convicted or sentenced before issuing a pardon. Trump, in other words, may use his pardon power to stymie Robert Mueller’s investigation, as well as other inquiries into the past misdeeds of his associates.

And here is the frightening thing: The Mueller investigation has been serving subpoenas through a grand jury, most recently for firms associated with former Trump campaign manager Paul Manafort. What would happen if subjects of Mueller’s subpoenas don’t comply? They would be held in contempt, just as Arpaio was. And we’ve seen how little respect Trump has for judges who hold his friends in contempt. (Michael Flynn has been subpoenaed by the Senate, which would have to find him in contempt of Congress.) What about Trump’s other associates who may soon be pulled into Mueller’s probe? Why should they cooperate with the investigation? If they do, crimes might be revealed, making it more politically difficult for Trump to pardon them. If they don’t cooperate, they will merely be held in contempt of court—allowing Trump to step in with a pardon, publicly dismissing the charge as a witch hunt. Contempt is an essential enforcement tool that the judiciary can use to keep investigations from stalling out and to help ensure the progress of justice. Trump is effectively nullifying that tool. By pardoning those who defy court orders, Trump would be able to continually frustrate the investigation and prevent Mueller from uncovering the truth.

(…)

A chain of events like this, of course, would be obstruction of justice, an impeachable offense. But it seems unlikely that Republicans would move to impeach Trump for obstructionist clemency. He has, after all, an unquestionable right to issue pardons; the GOP could defend his actions as an unsavory but fundamental component of executive power. The Constitution provides only a political solution to obstruction of justice, which is no solution at all in a Republican-dominated Congress.

University of California at Berkeley Law Professor Ian Lopez argues that Trump committed an impeachable offense with this pardon:

In pardoning an official who spat upon the 14th Amendment right to racial equality and who treated the federal courts contemptuously, Trump abused his presidential powers. He enabled a racist to trash our country’s core values and subvert the rule of law and face no consequences for these actions.

With courts powerless to stop this double assault on democracy, Trump must be held to account politically. This is precisely the situation for which impeachment was designed. The Constitution speaks of impeachment for “high crimes and misdemeanors.” This term refers not to some narrow set of enumerated crimes but broadly to abuses of public power that threaten the democratic order.

Other grounds for impeaching Trump have been advanced and, given his temperament as well as on-going investigations, others will surely emerge. Likewise, with respect to his aligning himself with racists, the bill of particulars against Trump is long and growing, from his birther lies to his coddling of the Charlottesville white supremacists. Finally, this is unlikely to be Trump’s last abuse of pardon power. Pardons for family members, and even for himself, may come all too soon.

As a technical matter, these swirling and deepening transgressions are independent of Trump’s pardon of Arpaio, which could stand on its own as a basis for impeachment. But the case for impeachment should not be read narrowly. It is, at root, a political judgment. At its most mystical—in the aspirational sense of the word—impeachment is the people’s power. This power should be exercised based on concrete abuses, to be sure, but should also look broadly at the president’s behavior, past and probable.

Taken together, all of these arguments make a compelling case that Trump’s decision to pardon Arpaio, in addition to being highly unusual given the precedents established by modern Presidents, is troubling in many respects. The very act shows a contempt for the Rule of Law and the independence of the judiciary that is quite troubling to see in an American President. This is hardly surprising when it comes to Trump, of course, given his previous attacks on Judges both as a candidate and as President. When he was a candidate, Trump attacked the Judge presiding over the class actions lawsuits filed against Trump University based solely on the fact that the Judge’s parents were Mexican immigrants. The fact that the Judge himself was born and raised in the exceedingly American state of Missouri wasn’t relevant to Trump, who was convinced that the Judge was biased against him solely because of Trump’s derogatory comments about Mexican immigrants and promise to build a wall on the southern border. Similarly, when Federal Judges in Washington State, Hawaii, Maryland, and elsewhere issued rulings striking down his Muslim Travel Ban, Trump went after these Judges as well. Viewed through the lens of the President’s own prior behavior, then, Trump’s pardon was completely predictable.

Despite all of this, the fact of the matter is that Trump’s decision to pardon Arpaio is entirely within his authority as President of the United States. As I noted above, the text of the Constitution places only two limitations on this authority and neither of them is applicable here. Arpaio was convicted of violating a Federal law by refusing to comply with the order of a Federal District Court Judge, therefore it was the type of offense “against the United States” covered by the pardon power. Additionally, Trump’s pardon was not seeking to avoid an impeachment proceeding of some kind. This means as distasteful as it was, the pardon of Joe Arpaio was perfectly legal and that any argument to the contrary is without merit.

Given this, the idea that this pardon could be the basis for an impeachment seems absurd. While impeachment is, in the end, a political act and that an ‘impeachable offense’ could be whatever a majority of the House of Representatives says it is, the fact remains that the Constitution makes clear in Article II, Section 4 that Federal officials can only be impeached for “treason, bribery, or other high crimes and misdemeanors.” There has never been a court ruling on what this phrase means, and in theory, Congress is free to define the phrase as it sees fit. However, it has historically been the case that Congress has been careful to find at least some credible legal basis for the impeachment rather than using it as a blatantly political act. This is why, for example, the grounds for President Clinton’s impeachment consisted of perjury before the Whitewater Grand Jury and obstruction of justice, both of which are Federal crimes. In this case, the fact that the pardon is entirely within the President’s authority suggests strongly that it cannot be an appropriate ground for impeachment.

Yes, Trump’s decision to pardon Arpaio is distasteful to those of us who cherish the Rule Of Law but it was entirely legal and within his authority. At the same time, though, turning what is a lawful exercise of power into an impeachable offense would constitute the same kind of disdain for the Rule of Law that Trump displayed on Friday evening. It may well be that grounds to impeach and remove the President will arise at some point between now and 2020. If they do, then Congress will have a duty to act as the Constitution intended. That time has not arrived, though, and this pardon in and of itself simply isn’t enough.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Slugger says:

    Legal does not mean ethical nor righteous. It is proper to voice disapproval of actions taken by an elected official when they are simply wrong but within the formal lines. I disliked the Marc Rich pardon which smelled like a favor to a rich guy, but it came at the end of Bill Clinton’s tenure, and I thought that he would fade away. It added to the sense that the Clintons were willing to set themselves above the norms of our society. I voted for HRC without enthusiasm. I believed Jerry Ford and was comfortable with the Nixon pardon.
    The question before us whether Trump can be made to listen to anything besides his Id.

    Like or Dislike: Thumb up 6 Thumb down 0

  2. ptfe says:

    I’m curious if anyone has seen the actual pardon text — or if there is actual pardon text — beyond the WH press release. If Arpaio has been “pardoned”, he was presumably pardoned for something in particular or for some segment of his misconduct, but the press release doesn’t make that clear in any way, instead just using the word “pardoned” and associating it with his age, career, and status.

    Anyone got anything more specific?

    Like or Dislike: Thumb up 2 Thumb down 0

  3. John Peabody says:

    Tl;dr: Trump acts just like we always knew he would. Not illegal, just damn low.

    Like or Dislike: Thumb up 1 Thumb down 0

  4. Timothy Watson says:

    @ptfe:
    DOJ’s website simply states:

    Joseph M. Arpaio
    Offense: Contempt of court (District of Arizona)
    Sentence: N/A

    https://www.justice.gov/pardon/pardons-granted-president-donald-trump

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  5. CET says:

    It has always seemed odd to me that the presidential pardon was a unilateral power. I mean, I get that it makes conceptual sense for the power to pardon residing with the head of the executive branch, but the obvious potential for abuse begs for some kind of counter-weight. If the original purpose was to allow for national healing after, say, an insurrection (or an impeachment), it’s not clear why the process doesn’t include at least a modicum of oversight from the legislative or judicial branch.

    I’d be curious to see how popular an amendment to that effect was. After all, it’s not like abusing the pardon is something only one party does.

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  6. ptfe says:

    @CET: There’s been ample discussions about the possible limits of pardon power during the last few months, many of which seem like they should be addressed e.g. via amendment. Examples: self-pardoning, pardoning others for offenses to which you are a party, or blanket pardoning.

    Of course, there’s been no judicial review of existing pardon power because pardons are necessarily limited in possible damage claimants. So even if there were an amendment asserting that this kind of pardon was an abuse of Constitutional authority, who’s going to bring the claim against the rogue president?

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  7. Daryl's other brother Darryl says:

    With this pardon Comb-over Donnie, the President of the United States, has freely endorsed concentration camps and torture based solely upon race and without due process. He has openly laughed at a number of Constitutional Amendments. He has given a full-throated endorsement of fascism, which Arpaio represents.
    I’m sure someone in the 30’s thought Hitler was acting “entirely within his authority” as Chancellor of Germany…and how well did that turn out?
    When the POTUS is endorsing white supremacism, and that’s what this pardon does, then dark days are upon the Republic and if we need to resort to political solutions like impeachment to stop this all before it gets worse then that’s what we need to do.
    Unfortunately the supine Congress cares more about tax cuts for the rich than they do about our country.

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  8. Kylopod says:

    @Slugger: A book I read by Woodward years ago stated that he initially disagreed with Ford on the pardon of Nixon but he eventually came around to realize that it was the right thing to do. I’m not convinced, but I do agree that it was an act of principle, and not in the least bit corrupt as it was widely perceived at the time. I can’t say that about other controversial pardons.

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  9. Kylopod says:

    I have to say, though, that the Marc Rich pardon, bad as it was, was beans compared to this. This is about the worst thing a president can do with this power.

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  10. pylon says:

    Pardoning someone may not be grounds for impeachment. But personally intervening in a DOJ case against the subject person just might be.

    Like or Dislike: Thumb up 7 Thumb down 0

  11. JohnMcC says:

    First, regarding the reference to Judge Curiel in the original post, he was born & raised & went to college in Indiana not Missouri. Small stuff like that reduces the significance of everything else one writes.

    Second, Jennifer Rubin over at WaPo has become a raving social justice warrior and Bernie Bro and has a terrific column at ‘Right Turn’ today, “Trump Exemplifies Abuse of Power.” She quotes (briefly! BRIEFLY!) from one of the cited experts (Lawfare) and develops pretty much the same argument that any power can be abused and that the Arpaio pardon is an abuse even if it is not illegal. It’s noted that your mileage may vary and that Mr Mataconis disagrees. Fair enough.

    But Ms Rubin quotes at some length from the Nixon impeachment that was never voted on. It could be used in our present mess without altering a single word. Now all we need is a Congress to do what is obviously needed.

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  12. CSK says:

    Arpaio says that now that he’s been pardoned, he might primary Jeff Flake.

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  13. Kylopod says:

    @JohnMcC:

    Jennifer Rubin over at WaPo has become a raving social justice warrior and Bernie Bro

    You’ve heard my theory: I think she’s aiming for a slot on MSNBC.

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  14. OzarkHillbilly says:

    @Kylopod:

    I’m not convinced, but I do agree that it was an act of principle,

    The principle being “Bury this investigation before it buries your party”.

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  15. gVOR08 says:

    While impeachment is, in the end, a political act and that an ‘impeachable offense’ could be whatever a majority of the House of Representatives says it is

    End of story.

    If public outrage reaches a point that Trump is an electoral liability to enough Representatives, his haircut will be an impeachable offense (as it should be). Otherwise, clear collusion with Putin to throw the election to Trump won’t be.

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  16. gVOR08 says:

    @Kylopod:

    but I do agree that it (Ford’s pardon of Nixon) was an act of principle, and not in the least bit corrupt as it was widely perceived at the time.

    As far as we know.

    After decades of corruption who knows what Nixon had on other Republicans. It’s only in the last year or so we got confirmation of the Chennault Affair.

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  17. Just 'nutha ig'nint cracker says:

    @CET: “…it’s not like abusing the pardon is something only one party does.”

    True, but it may be something that only one party at a time recognizes as abuse.

    Like or Dislike: Thumb up 1 Thumb down 0

  18. Just 'nutha ig'nint cracker says:

    @Just ‘nutha ig’nint cracker: Moreover, the cure for abuse of power as the executive is insurrection. It seems to be the only solution available in most situations considering that impeachment is primarily a political act (probably contrary to the intentions of the authors of the Constitution, who probably thought they’d addressed the abuse problem pretty well).

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  19. Slugger says:

    Back to the Nixon thing. I was 36 years old at the time. In the decade preceding the pardon, we had seen the murders of JFK, RFK, and MLK. We’d lost a war and suffered around 55,000 KIA. We saw riots and burning of Detroit, Watts, etc. We saw shameful actions by the President. I thought that a bit of calmness was worth leaving some crimes unsolved. Sometimes winning by ten points is enough; you don’t need to go for another TD late in the fourth quarter.

    Like or Dislike: Thumb up 4 Thumb down 0

  20. Kylopod says:

    @gVOR08:

    After decades of corruption who knows what Nixon had on other Republicans.

    Agreed, but everything we do know suggest it was done out of true conviction, which isn’t hard to believe considering how politically suicidal it was. If new information surfaces to contradict this interpretation, then I’ll revise it in light of those facts, but until then I don’t see any reason to just assume without evidence that it was a dirty deal.

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  21. An Interested Party says:

    I have to say, though, that the Marc Rich pardon, bad as it was, was beans compared to this.

    Indeed…during his press conference today, the Orange Mange felt the need to bring up Clinton and Obama pardons as a way to somehow justify what he did…there’s nothing like the defense of “Mommy, he did it first!” Lovely…

    Like or Dislike: Thumb up 0 Thumb down 0

  22. Just 'nutha ig'nint cracker says:

    @pylon: Grounds for impeachment are really simple: whatever the necessary majority of the House of Representatives is willing to vote “yea” for is grounds for impeachment. No more. No less. It’s a political process, which is why it won’t happen until 2019 at the earliest. The party in the majority in the House has no political justifications that they are willing to exercise to throw Trump under the bus.

    It’s one of the few things that gives me hope that we won’t get a President Pence and a re-energized Republican caucus. Ironically, America needs Trump to keep being a fork up until the voters regain their sanity and elect responsible people to office. Moving Trump out only exposes the nation to risk of damage that cannot be easily corrected. As bad as that risk is now it may be worse in an impeached Trump universe.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. gVOR08 says:

    @Just ‘nutha ig’nint cracker:Another example of the Founders’ failure to anticipate the rise of parties. The Founders did give us a way to fix this (or Gerrymandering, or the Electoral College, or Citizens United, or whatever), but we don’t seem to be very good at it. In 228 years we’ve ratified 27 amendments total, only one since 1971, and that one was proposed in 1789. (Really.) And frankly the idea of a Constitutional Convention in the era of the Koch Bros and the rest of the Billionaires Boys Club scares me spitless.

    Like or Dislike: Thumb up 3 Thumb down 0

  24. Kylopod says:

    @An Interested Party:

    the Orange Mange felt the need to bring up Clinton and Obama pardons as a way to somehow justify what he did

    It really is striking how much he sounds like a standard Foxoid/Breitbart Internet commenter–the folks we get here like Jack, Bill, Guarneri, Paul L., JKB, John666, and so on.

    Like or Dislike: Thumb up 2 Thumb down 0

  25. Gustopher says:

    The President has the power to pardon, pretty much unlimited.

    Congress has the power to impeach, also pretty much unlimited.

    That balance is either careful considered, or a coincidence. It doesn’t really matter though, since this congress will never vote to impeach.

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  26. Kylopod says:

    @gVOR08: For better or worse, no constitutional amendment nor convention is going to happen anytime soon. One of the effects of the extreme partisan polarization today is that the country cannot achieve consensus on anything. Whatever the Dems come out for, the GOP comes out against. What the Dems should be working on isn’t to win over the hearts and minds of Republicans, but to launch a campaign on the benefits of breathing.

    Like or Dislike: Thumb up 1 Thumb down 0

  27. Tyrell says:

    Maybe the whole thing of presidential pardons needs to be looked at.

    Like or Dislike: Thumb up 0 Thumb down 2

  28. Andre Kenji de Sousa says:

    Impeachment is a very dangerous process and should be a last resort. It can destroy the trust on institutions and elections. Trump should be defeated in the ballot, elections should have consequences.

    Jonathan Turley is right that impeachment would be worse than keeping Trump.

    Like or Dislike: Thumb up 0 Thumb down 2

  29. Kylopod says:

    This is how Trump is now justifying the pardon:

    “A lot of people think it was the right thing to do,” Mr. Trump said on Monday of the pardon. “Actually, in the middle of a hurricane, even though it was a Friday evening, I assumed the ratings would be far higher than they were normally.”

    The jig is up. We elected a friggin’ cartoon character as president. He might as well have followed this up with an evil cackle.

    Like or Dislike: Thumb up 4 Thumb down 0

  30. Pylon says:

    @Just ‘nutha ig’nint cracker: yeah, I know impeachment is just a choice by the House. But my point was that, if you defend the pardon, you can’t defend the interference.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. Pylon says:

    My daydream fantasy is a flipping of the House (and Senate), an impeachment of both Trump and Pence (I think he’s in this up to his ears) and the new Speaker ascends.

    Like or Dislike: Thumb up 0 Thumb down 0

  32. Kylopod says:

    @Pylon:

    My daydream fantasy is a flipping of the House (and Senate), an impeachment of both Trump and Pence (I think he’s in this up to his ears) and the new Speaker ascends.

    Let’s review what would it would take to bring that daydream to fruition.

    Dems currently lead the generic Congressional ballot by 10 points, and combined with the president’s dismal approval ratings, those are exactly the kind of numbers that typically portend a wave election. There are some caveats, however:

    1) The deeply gerrymandered House.
    2) The fact that Democratic voters tend to be clustered into densely populated areas, further skewing the chamber in the GOP’s favor.
    3) The fact that the voters who show up during midterms tend to be older and whiter than during presidential years.
    4) The fact that Republican Congressional candidates may be in a stronger position than Trump, who underperformed relative to other Republican candidates last year.
    5) The real elephant in the room: The Senate. Dems only need a net gain of 3 seats to gain control of the chamber in 2018, but the idea that that’ll be easy is a mirage, because Dems have to defend a whopping 25 seats of their own, 10 of them in states that Trump carried. The Republicans, meanwhile, only have to defend 8 seats, 6 of them in deep-red states. In order to win control of the Senate, Dems would have to run the table on every single seat they’re defending, AND knock out Jeff Flake and Dean Heller, AND pick up at least one additional seat in a deep-red state. It is actually very plausible that Dems could win control of the House while at the same time seeing a net loss in Senate seats.

    Even if by some miracle they do manage to win the House along with a narrow 51-seat majority in the Senate, they’d need to get at minimum 16 Republicans on board in any effort to remove Trump from office, which really isn’t a whole lot different from the 19 they’d need today. And that’s assuming they could keep all the Dems on board, including those in deep-red states like West Virginia (where Trump won nearly 70% of the vote, and where he currently has about a 60% approval rating), who would have to cast an essentially suicidal vote to remove a president most people in the state still like.

    That’s why impeachment is such a long shot even if many elected Republicans secretly harbor the desire to see Trump gone. The idea of a party removing its own executive is not totally outlandish; it’s exactly what happened in Illinois with Rod Blagojevich. But the incentives were different, there. Illinois Dems stood more to lose by keeping someone so blatantly corrupt around, and while Blago was a sort of Trumpian personality (a bombastic, shamelessly amoral figure with a weird-ass hairdo), he didn’t have anything like the cult following our current president has.

    The wild card here is we still do not know what has yet to be revealed about Trump, and there is a chance that something may come out that’s so utterly outrageous Republicans decide they have no choice but to impeach.

    Sorry to ruin your daydream, but I do think it is worth keeping in mind where things stand.

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  33. Tyrell says:

    @Daryl’s other brother Darryl: “concentration camps”: the FEMA camps ?
    Tax cuts: it is time for a tax cut for the middle class people.

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  34. SC_Birdflyte says:

    I’m shocked! Seriously, is this the first time Donald Trump has used the Constitution to wipe his nose?

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  35. CET says:

    @Kylopod:

    That’s why impeachment is such a long shot even if many elected Republicans secretly harbor the desire to see Trump gone.

    Which brings us to the real problem – a GOP base that is so used to getting their opinions from the Völkischer Beobachter Breitart/Fox/Etc that they live in a reality that bears only a superficial resemblance to this one. The GOP might as well be beholden to the votes of people living in ‘The Upside Down’ from Stranger Things….

    But, other than cross my fingers, vote responsibly, and hope we muddle through without re-enacting the Spanish civil war, I’m not really sure what to do about that.

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  36. SKI says:

    @Just ‘nutha ig’nint cracker:

    Moreover, the cure for abuse of power as the executive is insurrection. It seems to be the only solution available in most situations considering that impeachment is primarily a political act (probably contrary to the intentions of the authors of the Constitution, who probably thought they’d addressed the abuse problem pretty well).

    Indeed. From the Virginia state ratifying convention:

    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 tp believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty...

    So this is where I possibly part with Doug. Driving a car down the street is legal. It becomes criminal if it is away from a robbery. So too, the Presidential pardon power is massive and pardoning anyone of a federal crime is within its ambit but if used for an improper purpose, in furtherance of a crime, it is an impeachable event. I say possibly because I agree with him in this case. Pardoning Arpaio is repugnant and disgusting and offensive but it is not impeachable absent connection to an attempted crime, cover-up or other malfeasance. Now if he pardons someone involved in the Mueller probe… all bets are off.

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  37. pylon says:

    @Kylopod: Oh, I know. That said, even a House vote would weaken Trump, even if a conviction didn’t ensue.

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  38. teve tory says:

    arpaio’s many abuses of power.

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  39. Just 'nutha ig'nint cracker says:

    @Tyrell: Not a good idea. To quote Sen. Everett Dirksen (IIRC–and one of your heroes, maybe?) “We have to raise taxes on the middle class, that’s where the money is.”

    Now, if anybody want’s to make a case to the contrary about the location of the money…

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