A version of my post on the pardon of Sheriff Arpaio as an impeachable offense appeared on Slate yesterday, and drew a wide array of comments. Leaving to one side the contingent that was just calling names, as a whole the comments raise some issues that merit additional comment.
- A great many commenters raised the obvious points that impeachment of a president is very difficult and that, regardless of the facts, impeachment of this president on any ground is vanishingly unlikely so long as Republicans hold majorities in both houses of congress. I agree, and said so in the Slate article and many times on this blog.
- A fair number of, obviously conservative, commenters sneered that impeachment of Mr. Trump is nothing more than a delusional, and even subversive, fantasy indulged by defeated liberals. Another group of, apparently liberal, commenters said that it is a mistake for Trump opponents to focus unduly on impeachment as the solution to the frightening reality of the Trump presidency. They note that impeachment is deeply unlikely and in any case would only produce a Pence presidency that would not remedy the policy problems caused by total Republican control of both the White House and Congress. Democrats and politically aware independents, they say, should focus on organizing locally to win local and state elections and congressional seats in 2018. I agree that impeachment is unlikely — though not, I think, impossible. And I agree that the primary focus of those opposed to Mr. Trump personally and to the policies of the current Republican Party should be on elections, not impeachment.
- Nonetheless, although I am a Democrat and I’d rather not have Mike Pence as president, my disagreements with him and his Republican compatriots fit within the frame of normal political differences that will work themselves out in the normal way over a series of electoral cycles. Trump the man presents unique threats to the Republic, and indeed to the peace and stability of the planet, that extend far beyond my disagreements with Republican policy. And that extraordinary, indeed quite unprecedented, threat to the country merits consideration of the extraordinary remedy of impeachment.
- Several commenters said, in effect, that if impeachment must be discussed, the discussion should avoid speculative and improbable theories for its application. I agree. And I would agree that impeachment of Mr. Trump based solely on his pardon of former sheriff Arpaio is in the highest degree unlikely. Heck, it ain’t gonna happen. But that does not change my constitutional analysis of Trump’s behavior in this instance, which I believe to be sound. And I think it important as a practical matter to lay out the analysis now – to get serious people thinking about the connection between improper pardons and impeachment. Because, as others have already observed, the Arpaio pardon may well be a harbinger of later Trump pardons of persons implicated in the Russia investigation or other investigations that threaten him or his family. As deeply improbable as impeachment for the Arpaio pardon alone may be, the country should begin thinking seriously about impeachment if this first patent abuse of authority becomes a pattern.
- Despite my earnest efforts, a number of commenters simply rejected the notion that a president can be impeached for the exercise of a power conferred on him by the constitution. In effect, they say, “The constitution grants presidents the power to pardon anyone for anything. So no pardon can possibly be an impeachable offense.” They’re wrong. Let me amplify the point. Merely because a president is given a power does not mean that any use of it is permissible. As I wrote in the article, the primary reason the founders wrote a power of impeachment into the constitution was precisely to permit removal of a president who misuses his constitutionally granted authority. For example, Article II, Section 2, of the constitution makes the president the “commander in chief of the Army and Navy of the United States.” That grant does not make the American armed forces the president’s personal Praetorian Guard. If a president were to order the armed forces to bomb the headquarters of the opposing political party, or invade an ally which had offended the president personally, or kill prisoners in violation of international law, or refuse to defend the United States against a foreign invasion, or refuse to allow US forces to fulfill our treaty obligations to NATO countries, or even allow the armed forces to degrade to a point where their ability to defend the United States and its allies was in question, he would plainly be impeachable for a misuse of a constitutionally conferred power. The president’s pardon power is no different.
- I am entirely in sympathy with those who urge caution in talking about impeachment. Indeed, I have written at length about that very point on this blog. But caution does not equate to a craven refusal to contemplate a constitutional remedy for a genuine constitutional crisis. This blog will continue to consider that remedy — cautiously, yes, but with a vigor inspired by the reality of our national circumstances.
Richard Liu said:
Good points. I also think it would be well — and I believe you make this point, too — to begin thinking about where we might draw the proverbial red line, before we just become inebriated by the virtuous feeling of having protected the Constitution every time we dismiss another atrocious tweet or proclamation with a “not there yet” … and pour ourselves another stiff drink. After all, Mr. Trump has demonstrated in a scant seven months that nothing is so inconceivable that we can safely assume he would never say or do it. The Forefathers might have had the foresight to provide for removal of the president in the Constitution, but they could hardly have imagined a successor to George Washington like Donald Trump. A too strict interpretation of ““treason, bribery, and other high crimes and misdemeanors” can be just as injurious to the Constitution as one that is too lax.
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