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The D’Souza pardon: Trump builds the case for his own impeachment

01 Friday Jun 2018

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By Frank Bowman

Mr. Trump just pardoned right-wing provocateur Dinesh D’Souza for federal campaign finance violations.  In isolation, this pardon is of little importance.  It is aggravating, of course, inasmuch as nothing about D’Souza’s case or personal history would seem to qualify him for such an extraordinary exercise of executive clemency.  To the contrary, he pled guilty to crimes he plainly committed, received a light sentence, and has been utterly unrepentant. Moreover, the pardon was issued completely outside of the normal painstaking review process which passes through the Justice Department’s Office of the Pardon Attorney.  It was just a Trumpian spasm.

A good many commentators have raged against the D’Souza pardon. Some contend that it is yet another indication of Trump’s contempt for the law. Others suggest that it may be a direct signal to Trump courtiers in the Special Counsel’s sights that they need not cooperate because pardons are freely available to friends of the man up top.  I agree with all these observations, but I take some solace in the realization that Mr. Trump’s gleeful deployment of a presidential power he imagines to be absolute is, in reality, adding to the case for his impeachment.

Mr. Trump is right that a president’s pardon power is nearly absolute.  Some academics have argued that a pardon can be reviewed and reversed by courts either on due process or separation of powers grounds.  Those arguments are almost certainly wrong. A president’s pardon of himself may be invalid as violating the fundamental common law principle that no man may be the judge of his own case, but even that is debatable.  However, to say that the pardon power is nearly absolute means only that a pardon, once issued, cannot be undone and the person pardoned cannot be unpardoned.  That does not mean that the pardoner — the president — is immune from consequences if he misuses his constitutional authority.

Indeed, it is absolutely clear that the Framers of the Constitution believed that a president could be impeached for misuse of the pardon power.

During the Virginia ratifying convention for the federal constitution, George Mason expressed concern about the breadth of the pardon clause and indeed about the very idea of giving pardon power to the president.  He said:

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. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

James Madison responded:

There is one security in this case [a misuse of the pardon power by the president] 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….

In short, Madison said that the remedy for presidential misuse of the pardon power was impeachment.

George Nicholas, another delegate to the Virginia convention, made a similar observation, suggesting that the American constitution was superior to British arrangements because the president was subject to impeachment for preemptive pardons of political allies.

These founding era statements are most obviously applicable to any effort by Mr. Trump to pardon political or business associates or family members under investigation by the Justice Department.  Use of the pardon power either to shield Mr. Trump personally from liability or to shield him from the political repercussions of criminal prosecutions of his intimates or supporters is indisputably an impeachable offense.

But I would go further.  Alexander Hamilton suggested in The Federalist Papers, No. 74, that the presidential pardon power had a twofold purpose: to provide a means of tempering with executive clemency the sometimes harsh results of rigid application of the law and as a tool of statecraft.  Hamilton’s example of the second purpose was the use of a well-timed pardon to potential rebels or insurrectionaries to prevent open conflict.  Over the succeeding centuries, multiple presidents have employed pardons and amnesties for reasons of state, often after hostilities to reconcile a divided country or region.  Notable illustrations include George Washington’s pardons of participants in the Whiskey Rebellion, Madison’s amnesties to deserters in the War of 1812, Andrew Johnson’s pardons of Confederates after the Civil War, and the post-Vietnam War pardons of draft law offenders by Presidents Ford and Carter.

Neither the mercy nor statecraft rationale for pardons can be extended to the issuance of pardons for partisan political ends.  Of course, one must tread carefully here because one man’s exercise of mercy or statecraft is another man’s partisan political maneuver.  Thomas Jefferson pardoned violators of the Alien and Sedition Acts because he thought that the Act was probably unconstitutional and certainly contrary to American principles.  But Jefferson had opposed the Acts in the first place and the pardons pleased his political supporters.  Barack Obama pardoned or commuted the sentences of hundreds of drug law violators.  For many observers, this was a long-overdue and even insufficient reaction to over-criminalization of narcotics offenses.  For Obama’s harsher critics, it could be portrayed as a pander to his electoral coalition.

Likewise, there is plainly some constitutional room for pure whimsicality in presidential judgment about what offenses deserve executive clemency.

Nonetheless, there is no obvious precedent for what appears to be an emerging pattern with Trump — pardons issued almost exclusively (1) to Trump political allies or fellow travelers, (2) to friends or friends of friends, or (3) for the purpose of sending political messages.  D’Souza and former Arizona sheriff Joe Arpaio plainly fall in the ally and fellow traveler box. In the second category is the pardon of Scooter Libby whose case seems to have been brought to Trump’s attention by Victoria Toensing, who with her husband and law partner Joe diGenova, is an ardent public defender of Trump and was briefly set to represent him. In the third category is the pardon of Kristian Mark Saucier.  Saucier was a sailor convicted of the unauthorized retention of defense information and Trump explicitly compared his treatment to the supposed failure of the Justice Department to prosecute a top Clinton aide.  Some have intimated that the Libby pardon also falls in the signaling category inasmuch as Libby was convicted of the kinds of crimes, perjury and obstruction of justice, that figure so heavily in the ongoing Mueller investigation.

The common feature of all these pardons is that none was issued following the ordinary DOJ and White House review processes created to avoid the actuality or appearance of presidential arbitrariness or favoritism.  Likewise, none of them was accompanied by any principled explanation of why the defendant merited an exercise of clemency.

I have argued elsewhere that the Arpaio pardon is technically an impeachable offense (although I have never imagined that, standing alone, the Arpaio case would generate an article of impeachment). None of the other pardons discussed here, considered in isolation, reaches that level.  Nor do we yet have a sufficient number of cases to prove an incontestable pattern of misuse of the pardon power for partisan purposes.

That said, when I teach evidence to law students, I sometimes use the following analogy to illustrate how lawyers go about satisfying the burden of proof necessary to win a lawsuit: Imagine, I tell the students, that the amount of evidence necessary to meet the burden of proof is a brick wall, about so long, and so wide, and so high.  To be relevant — that is, helpful in the task of meeting the burden of proof — no single piece of evidence has to be the size of a complete wall.  Each piece of relevant evidence is just a brick in that wall.

As a careful student of the Constitution’s impeachment clauses, I believe that a pattern of using the pardon power for partisan ends is an impeachable offense.  Such a pattern is not yet established in Mr. Trump’s case.  But the D’Souza pardon is a solid brick in an emerging wall of proof.  If Mr. Trump persists on his current path of misusing the pardon authority for personal aggrandizement and political gain, the D’Souza affair could properly take its place among a bill of particulars in an entirely appropriate article of impeachment.

Trump Condemns Arpaio to Guilt

20 Friday Oct 2017

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According to this article, U.S. District Judge Susan Ritchie Bolton has held that President Trump’s pardon of Sheriff Arpaio only functions to stop his sentencing, and not to remove his guilt. In fact she claims it “implies a confession of guilt.” As such, the pardon issued by President Trump will forestall Arpaio from contesting the validity of his conviction on appeal.

Professor Frank Bowman has discussed at length how the Arpaio pardon is an impeachable offense. That discussion can be found here. In addition to a summary of the facts, the link above includes Judge Bolton’s written decision.

la-na-arpaio-timeline-20170801.jpgJoshua Lott / Getty Images

 

The Arpaio pardon: Dean Chemerinsky’s separation of powers argument is clever, learned … and wrong

24 Sunday Sep 2017

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I have argued that Mr. Trump’s pardon of Sheriff Joe Arpaio is potentially an impeachable offense. Others have gone further, asserting that Mr. Trump lacked the constitutional power to issue this pardon.  I think these arguments are wrong as a matter of constitutional law, and ill-advised if conceived as part of a larger effort to secure impeachment of Mr. Trump.

I have already addressed the contention that the Arpaio pardon violated the due process clause.  Today, I take up the claim by Dean Erwin Chemerinsky and others that it violates the separation of powers.

Dean Chemerinsky, together with prominent lawyers Michael and Jane Tigar, advances the separation of powers argument in an amicus brief filed with the district court judge who found Sheriff Arpaio in criminal contempt.  The brief is a learned, creative, clever piece of legal work.  It’s also, sadly, a lovely house of cards that collapses at a touch.

To see why requires a quick recap of the proceedings that resulted in Arpaio’s contempt conviction and a review of basic contempt and pardon law.

The Arpaio contempt: In 2007, a group of individuals filed a federal civil rights class action against Arpaio and the Maricopa County Sheriff’s Office alleging discriminatory policing and a variety of other misbehavior. The case dragged on for years, with Arpaio resisting every step of the way.  In 2010 and again in 2012, the Department of Justice filed its own civil lawsuits against Arpaio and the county. Both DOJ and the class action litigants secured court orders requiring changes in the behavior of the Sheriff’s Department, but it became evident that the orders were not being complied with.  In 2015, DOJ intervened in (meaning that it became a party in) the civil rights action to coordinate its enforcement efforts with those of the plaintiffs and the court. Arpaio’s resistance to the court’s authority continued.

In May 2016, Judge Murray Snow found Arpaio and others in civil contempt of orders issued in the civil rights action by then being pursued by both private plaintiffs and the Department of Justice. In July 2016, Judge Snow ordered a series of remedies for civil contempt designed to protect the rights of the plaintiff class – such as a monetary compensation scheme for victims and changes in sheriff’s office policies.  On August 19, 2016, he also formally requested the Department of Justice to “prosecute” Sheriff Arpaio and others for “criminal contempt” before a different judge.

A separate criminal case was opened, with a different caption and different case number — United States v. Arpaio, Case No. 2:16-cr-01012.  The only parties were the United States and Sheriff Arpaio, not the individual plaintiffs in the separate civil rights action.  The “cr” in the case number denoted a criminal, rather than a civil, case.  On July 31, 2017, Judge Susan Bolton found Arpaio guilty of criminal contempt in violation of 18 U.S.C. Section 401. On August 25, before Judge Bolton could sentence Arpaio, President Trump issued him a pardon in the criminal contempt case.  He did not pardon Arpaio in the civil contempt case, which at all events he lacked the power to do.

As illustrated by the Arpaio case, contempt can be either civil or criminal.  In civil contempt, the penalties are coercive and often conditional (such as fines that continue to accrue so long as offending party persists in violating the court’s order), and are designed to compel compliance with a court’s order and vindicate the rights of the litigants. In criminal contempt, the penalties are fixed, not conditional on the defendant’s subsequent behavior, and intended to vindicate the authority and dignity of the court.  Criminal contempt penalties may include incarceration and all the collateral consequences of any other criminal conviction, such as disqualification from voting or running for office.

The law of pardons and contempts: Article II, Section 2, of the Constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” When lawyers and judges use the word “offense” as a general term describing a category of legal cases, they mean “crime,” as distinct from a civil wrong.  Thus, the plain language of Article II, Section 2 gives the president the power to pardon crimes, but not the power to void civil judgments against federal litigants.

Criminal contempt “is a crime in the ordinary sense,” a point the Supreme Court has affirmed over and over again.  And a violation of 18 U.S.C. 401 is a felony.

Moreover, the Supreme Court has expressly held that the pardon power extends to criminal contempts. In Ex parte Grossman, a 1925 opinion written by a man who knew about the pardon power from first-hand experience, Chief Justice and former President of the United States, William Howard Taft, the Court addressed exactly the same separation of powers argument Chemerinsky makes and unanimously rejected it.

Chemerinsky tries, as lawyers say, to “distinguish” the Grossman case — which means to argue that Grossman doesn’t count because it decided a different issue than the one presented by the Arpaio pardon.  In a nutshell, Chemerinsky claims that the Arpaio contempt was different that than the Grossman contempt in a way that, for historical reasons, places it outside the president’s pardon power.

The argument is intricate, elegant … and wrong.  It runs something like this:

The Supreme Court in Grossman said that, when creating the president’s constitutional pardon power, the framers thought of it as roughly coextensive with the King’s pardon power in England before the American Revolution.  Therefore, Chemerinsky sets out to find some limitation on the King’s pardon power that, by analogy, would limit a president’s power to pardon the Arpaio contempt.

In Merry Olde England (1300s though the 1600s), there were several avenues of redress for victims of crime.  The first was an ordinary prosecution of the wrongdoer in which the Crown was theoretically the party bringing the case. I say theoretically, because until the 1800s there was no body of public prosecutors, and virtually all criminal cases were brought by the victim, who was commonly called “the prosecutor.” Douglas Hay, et al., Albion’s Fatal Tree 40 (1975). The punishments in such cases were those we would ordinarily think of as criminal – fines, prison, or death – plus some specialties of the period like flogging, the stocks, or transportation to the colonies.  In addition to this customary practice of 18th Century English criminal courts, there was a very old procedure called “appeal of felony” that allowed victims to bring private prosecutions which, if successful, could result in both restitutionary payments to the victim and criminal punishment of the wrongdoer.  Chemerinsky cites several legal treatises, and might have cited others, to the effect that the King could pardon defendants convicted in actions brought by the Crown, but could not pardon defendants convicted in private “appeal of felony” actions.

Chemerinsky argues that the constitution’s founders would have been familiar with the exclusion of “appeal of felony” cases from the King’s pardon power, and thus that they intended to limit a president’s pardon power in any modern case analogous to the old “appeal of felony” mechanism.  As an historical matter, this is deeply unlikely.

In the first place, “appeal of felony” does not seem to have existed in American colonial jurisprudence. Boston Railway v. Dana, 1 Gray  83 (Mass. 1854), in Charles E. Chadman, Chadman’s Cyclopedia of Law, Col. X1 (1906), at 12-16. There is no mention of “appeal of felony” in the records of either the constitutional convention or any of the state ratifying conventions. Moreover, even in England, the mechanism of “appeal of felony” was already falling out of favor by the early 1600s, and there are only a dozen reported cases of its use in all of the 1700s. “By 1800 the appeal was as obsolete as any institution can be that has not been formally abolished.” J.H. Baker, Criminal Courts and Procedure at Common Law 1550-1800, in  J.S. Cockburn, Crime in England 1550-1800, at 18.

In short, it is improbable that, by 1787, even an unusually well-read American lawyer would have any personal acquaintance with a legal mechanism that had effectively been extinct in England for nearly a century.  The likelihood that any significant number of the constitution’s drafters or ratifiers knew about “appeal of felony,” and were aware that it was outside the royal pardon power, and thought that bit of historical arcana relevant to the scope of the pardon power of an American president approaches zero.  As one scholar wrote about a similar issue, “Even in the unreformed common law, there was a distinction between precedents and fossils.” Martha Ziskind, Judicial Tenure in the American Constitution: English and American Precedents,” Supreme Court Review 135, 138 (1969).

But let’s indulge the fiction that the founders knew about “appeal of felony” and the King’s pardon.  If so, the analogy of “appeal of felony” to criminal contempt proves exactly the reverse of what Chemerinsky claims. In England, once the Crown undertook prosecution of a criminal wrong, the King could pardon the resulting conviction. Likewise, the King could, and very often did, issue pardons in cases where private prosecutors filed informations in the name of the Crown. John Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1, 21 (1983). In Arpaio’s case, the Department of Justice became a party to the civil rights action and then, in a separate case heard by a different judge, prosecuted and obtained a criminal contempt conviction against Arpaio. Hence, even if this were 1787 and Mr. Trump were His Royal Highness Donald I, once the government entered the case seeking criminal penalties for violation of a criminal contempt statute, the resultant conviction would be pardonable by the Crown.

Finally, and most importantly, Chemerinsky argues that the contempt conviction in Grossman is different  because there the underlying lawsuit was brought by the government to enforce a federal statute, whereas the underlying lawsuit in Arpaio was a civil rights case initially brought by individual plaintiffs. Therefore, he contends, the contempt in Grossman was designed to protect government interests, while the contempt in Arpaio was designed to protect the interests of the individual civil rights plaintiffs in the original lawsuit. But in attempting this distinction, Chemerinsky either ignores or garbles two centuries of American case law on contempt and glosses over the procedural posture of Arpaio’s criminal contempt.

To begin, there is no suggestion in prior cases that the distinction between civil and criminal contempt turns on the identity of the litigants in the lawsuit in which the defendant behaved contemptuously.  Rather, federal courts have held over and over again that the difference between civil and criminal contempt lies in the nature and purpose of the penalties imposed.  As noted above, civil contempt penalties are designed to compel compliance with a court’s order and “vindicate the rights of the litigants.” Putting it another way, the point of civil contempt is either to give the party injured by the contumacious conduct immediate relief in the form of something like monetary compensation or to coerce a recalcitrant person into changing his future behavior by following the court’s orders so that litigants get the relief to which the court has found them entitled.

By contrast, the purpose of the penalty imposed following a criminal contempt is punishment.  It is delivered in the form of a criminal sentence indistinguishable in form and effect from a sentence for any other crime. It is fixed — so many months in prison, such-and-such a fine paid to the government — and cannot be later reduced or altered conditional on the defendant’s subsequent behavior.  (Indeed, under Rule 35(b), Fed. R. Crim. P., fourteen days after any criminal sentence is entered, the district judge loses the power to change it.  So a judge could not issue a conditional sentence in a criminal contempt even if she wanted to.) In short, the point of criminal contempt is not to compensate the injured party or coerce the contemnor into changing his future behavior to comply with the court’s orders.  It is to punish the contemnor for his past behavior in defiance of the authority and dignity of the court.

Of course, the threat of facing a criminal contempt prosecution may have the incidental effect of deterring a recalcitrant party from further defiance of the court’s orders, and an actual criminal contempt conviction may convince the convict to comply with orders he previously resisted.  Thus, a criminal contempt may incidentally benefit litigants harmed by the contemnor’s defiance.  But the object of criminal contempt remains protecting the authority and dignity of the court, not benefiting any party to the case.

Chemerinsky’s brief notes that the Supreme Court’s Grossman opinion alludes to the principle that a pardon in a contempt case is ineffective “to halt or interfere with the remedial part of the court’s order necessary to secure the rights of the injured suitor.”  But that snippet is nothing more than a nod to the fact that, in some prior cases, the same judge may have issued both civil and criminal contempt judgments. The Court is merely clarifying that, in such cases, a presidential pardon could void only the judgment of criminal conviction and any characteristically criminal punishments, but not the characteristically civil remedial components of a contempt order.

There is no danger of any confusion on this point in the Arpaio case.  The civil and criminal contempt judgments against Arpaio were separated by over a year and came in separate actions. The court’s order in the civil contempt case contained nothing but classic remedial measures.  We can’t know what sentence the judge would have imposed in the criminal contempt, but the penalties could only have been those permissible under federal criminal law.

In short, Grossman cannot be distinguished. And in Grossman, the Supreme Court held that a presidential pardon of a criminal contempt does not violate the constitutional principle of separation of powers.

Should Grossman’s holding on separation of powers be reexamined and overturned? 

Of course, even though Grossman is good law and indistinguishable from the Arpaio case, the Supreme Court could change its mind. Dean Chemerinsky argues that it should.  He makes three basic arguments, none of which withstand scrutiny.

First, he contends that aggrieved litigants in federal court have a “right to redress” implied from Article III, of which they would be deprived if judges could not employ criminal contempt sanctions to coerce compliance with their orders.

Second, he argues that the power to compel obedience to the judgments of courts through contempt sanctions is an inherent component of judicial authority that exists independent of any statutory authorization. He reluctantly concedes that Congress can, and has, limited that authority in a variety of ways. But he strongly implies that either removing or significantly limiting the judiciary’s contempt power would violate Article III.

Both of these claims are debatable, at least in the sweeping form advanced by Dean Chemerinsky. A general right to redress does not make constitutionally mandatory every possible means of judicial coercion. Likewise, the existence of an inherent judicial contempt power does not necessarily imply that criminal contempt is a constitutionally mandated attribute of judicial authority.  If, for example, Congress were to repeal Sections 401 and 402 of the criminal code and decree that henceforward federal judges would enjoy only civil contempt authority, it seems doubtful that such an action would be unconstitutional.

But even if we concede that litigants as a class have a constitutional entitlement to redress and that judges have a constitutionally implied power to hold in criminal contempt those who defy judicial orders, neither proposition creates a constitutional argument for voiding the Trump pardon of Arpaio.

The general principle that litigants have a right of redress is, at most, a guide to the kinds of processes that ought to be built into the judicial system as a whole.  It does not imply a rule that every litigant must receive perfect justice or complete satisfaction of all his legal objectives. Nor does it imply that judges are to be the exclusive arbiters of how justice should be apportioned. Once the pains and stigma attendant on criminal conviction enter a case, Anglo-American law has long reserved a place for executive judgments about clemency.

As for the Arpaio pardon in particular, it changed no laws, procedures, or rules of court.  It has no effect on the right of redress of any litigant in any case other than that involving the Maricopa County Sheriff.  And even there, the civil rights plaintiffs sued, won, and secured injunctive relief and monetary compensation. Arpaio and the county resisted the court’s orders, a resistance that begat further court orders, a civil contempt verdict, and additional remedial measures. Arpaio was actually convicted of criminal contempt, even though he escaped punishment for it by virtue of the pardon.  That is a deeply regrettable circumstance and one that reflects on Mr. Trump’s fitness for office precisely because it suggests his personal disregard of both the individual plaintiffs and the sanctity of their constitutional liberties. But it is not an outcome that denied the civil plaintiffs all “redress.”

Likewise, the general power of judges to hold recalcitrant litigants in criminal contempt remains unchanged by the Arpaio pardon. By issuing the pardon, Mr. Trump repealed no statute, promulgated no new Justice Department policy, advocated no new interpretation of Article III, and raised no challenge to the criminal contempt power of judges.  Here, too, his action reflects adversely on his fitness for office because it manifests a personal disregard for the role of an independent judiciary and a disposition to employ the powers of the presidency to distort the rule of law in favor of friends or political allies.  But the baseness of his motives in exercising a power granted the president by the constitution does not deprive judges as a class of their contempt power.

Which brings us to what might be characterized as the third of Dean Chemerinsky’s arguments, which is that the authority to hold persons in criminal contempt for violating court orders is such an indispensable attribute of judicial power that voiding it, even by presidential pardon in a single case, violates the constitutional principle of separation of powers.  With the greatest respect to Dean Chemerinsky, I do not believe that invocation of the phrase “separation of powers” can nullify the plain pardon language of Article II, Section 2 — “The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

After all, the constitution nowhere says, “There shall be a separation of powers.” Instead, it creates a structure of three branches of government and specifies how powers are to be distributed  among them.  The separation principle is inferred from the textual power distribution. In cases where the language of the constitution is unclear or fairly open to interpretation, or in cases that plainly could not have been anticipated by the founders, it may be appropriate to employ the inferred separation principle to decide the constitutional propriety of a contested use of power by one of the branches against another.  But, at least absent some extraordinary justification, one cannot use a general principle that is, after all, merely an implication from the structure to void an explicit, unequivocally worded, part of the structure.

Moreover, the inferred separation principle does not mean that the three federal branches occupy three non-intersecting silos of authority.  Rather, as we all learned in high school civics, the Madisonian constitution is one of checks and balances — three co-equal branches, each endowed both with its own characteristic powers and powers to check abuse of power by the others.  The presidential pardon power is a checking power.  It was designed to provide a case-by-case executive branch check on judicial overreach and an avenue of redress for individuals oppressed or misjudged by the courts.

Note that, unlike Professor Martin Redish and others who argued that the Arpaio pardon in particular might be subject to judicial review on its special facts and voidable as a violation of due process, Dean Chemerinsky’s argument is not limited to the Arpaio case. Instead, he is necessarily arguing that no president can ever pardon any criminal contempt, regardless of its circumstances. Judicial power over contempts, he says, is absolute and untouchable by executive clemency.

For this categorical exclusion to succeed in the face of the unequivocal language of Article II, Section 2, would require some powerful reason to believe either that occasional use of the pardon power would subvert judicial authority generally, or that criminal contempt cases are peculiarly immune from the danger of judicial misjudgment, meanness, or malignancy.

But the Arpaio pardon, however repellant one may find it, is not an instance of one branch (the president) preventing another branch (the judiciary) from functioning at all. The judiciary is still in business. Nor does it present an example of one branch preventing another branch from exercising a particular type of power.  Mr. Trump didn’t pardon everyone who has been found guilty of criminal contempt of a federal judge.  Nor did he threaten to do so.  The contempt power remains available to federal judges to enforce their orders, and they do so daily.

Moreover, there is no reason to think that judges are any less prone to misjudgment or injustice in cases of criminal contempt than in any other class of crime.  Indeed, there is every reason to fear that, in cases that necessarily involve defiance of their official authority and may closely touch their own outraged professional dignity, at least some judges may lose perspective.  This risk does not outweigh the imperative requirement of effective means of enforcing judicial orders, but it makes the case for an executive check on particular instances of judicial overreach even stronger than in ordinary criminal cases. Presidents do, and should, have the power to pardon criminal contempts.

The bottom line is that Mr. Trump had the power to pardon Joseph Arpaio.  That does not mean he was right to do so.  Nor does it mean that the country is without remedy if, as I believe, he was egregiously wrong.  But, as I have written repeatedly on this site, the remedies are political — repudiation of Mr. Trump and his party at the polls or impeachment.

The liberal legal intelligentsia and impeachment

In writing about Dean Chemerinsky’s brief on the Arpaio pardon, the almost invariably perspicacious Dahlia Lithwick opined that if the Dean and others succeed in convincing judges that the pardon violated the separation of powers, that would strengthen the case for impeachment.  At least with respect to Dean Chemerinsky’s brief,  I am constrained to disagree.

Dean Chemerinsky does not argue that this particular pardon was a uniquely abusive exercise of presidential authority.  Rather, he asks the court to find that neither Mr. Trump nor any other president can pardon anyone for criminal contempt, regardless of the circumstances. To win, he would have to convince the Supreme Court either to overturn the Grossman case or distinguish it based on a novel, technical, antiquarian basis. But then what?  Arpaio’s contempt conviction would be reinstated, but not because this pardon was a reprehensible abuse of authority, but because the Court reversed itself and decided for the first time that all presidents lack the power to pardon anyone for criminal contempt.  One can hardly impeach a president for failing to anticipate a U-turn by the Supreme Court. The Arpaio pardon is only plausibly an impeachable offense if Mr. Trump either violated a well-established constitutional rule or grossly abused a concededly available presidential power in this particular case.

Which brings me to my final point in this long screed. To be candid, despite my immense respect for Dean Chemerinsky, who is one of the undeniable giants of the American legal academy, his argument for the unconstitutionality of the Arpaio pardon is strikingly weak. It might persuade a district judge understandably angry at Arpaio’s long and inexcusable defiance and at the crassly political interference of a crass and belligerent president.  But it will go nowhere thereafter. And it shouldn’t.  The general rule for which it argues is contrary to the plain text of the constitution, the plain holding of the Supreme Court, sound principles of constitutional interpretation, and simple good sense.

It feels, I am sorry to say, like another example of brilliant legal scholars sponsoring tenuous legal arguments in the service of resisting, and potentially removing, Donald Trump. Heaven knows, I sympathize with the objective. Mr. Trump’s frightening unsuitability for his office becomes more evident by the day.

But if I may be pardoned the solecism of quoting something I wrote several months back:

 

Those who would impeach a president for his disregard of democratic norms must come to the task with clean hands. It will not do to say that, because Trump flaunts some norms, other norms can justifiably be bent or broken to bring him low. If that becomes the stance of Trump’s pursuers, then they become little better than the object of their indignation, and what should be a righteous pursuit will seem no more than partisan vindictiveness. Which will degrade the very standards of conduct we should all be seeking to uphold, and lead, inevitably, to yet another round of bitter political warfare conducted with even fewer restraints and less decency.

If that happens, those who oppose Mr. Trump will have failed utterly, even if they succeed in expelling him from office.

When legal academics enter the fray over Mr. Trump, we must hew tightly to our own cherished norms of intellectual honesty and analytical rigor.  There is nothing wrong, of course, with creativity and even a bit of aggressiveness. Mr. Trump, after all, presents unique challenges to the legal order we seek to uphold and his novel transgressions are fair game for legal innovation.  Still, we ought not be sponsoring arguments against Mr. Trump that, on the same or analogous facts, we would not make against a President Obama or a President Bush. When we yield to that temptation, we weaken whatever authority we have as honest and more-or-less neutral interpreters of the law.  That authority will be needed in the months and years to come, I think.  We should avoid squandering it.

Apples & Oranges: The Arpaio Pardon and President Obama’s Drug Sentence Commutations

06 Wednesday Sep 2017

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In a series of posts over the past week, I argued that Mr. Trump’s pardon of former Arizona sheriff Joe Arpaio constituted an impeachable offense.  This suggestion has drawn a variety of responses, some of them printable on a family-oriented blog, and others not so much.

A common theme among those resistant to my thesis was to ask, “Well, what about President Clinton’s pardon of Marc Rich?”  Or, “What about President Obama’s pardon of all those drug dealers?”  The easy response to this sort of question is simply to ignore it as “what-about-ism” — the tendency on both sides of the political spectrum to deflect attention from the misdeeds of one’s own leaders by pointing to allegedly equal misconduct by the leaders of the other side.

Taking “What-about-ists” seriously

But in some cases, what-about-ism, though intellectually lazy, raises issues that deserve a serious response.  The best method of determining if there is a real argument lurking behind the laziness begins by turning the question back on the What-about-ist, and asking him, “Well, what about it?” In other words, what implication would you have me draw from the past event to which you are comparing the present event I’m analyzing?

If one can draw a What-about-ist this far into a dialogue, the response will customarily take one of two forms.

Either the What-about-ist will say that the past act by someone on your “side” (for example, a Clinton pardon or Obama sentence commutation) was no different in kind than the current act by someone on his “side” (Trump’s Arpaio pardon), and thus the fact nothing was done to the person on your “side” (Clinton and Obama were not impeached and removed from office) proves that what the person on his “side” did is perfectly fine. Or the What-about-ist will tacitly concede that, although the current act by someone on his “side” might have been questionable, the fact that someone on your “side” did something comparable in the past and you didn’t complain about it at the time makes you a hypocrite.

A sophisticated What-about-ist might go further and maintain that the lack of past complaints or concrete action against someone on your “side” creates what lawyers would call an “equitable estoppel” — that is, having failed to complain about fouls by someone on your team, you can’t complain about the same foul by someone on theirs.

Note that for any of these arguments to succeed, even as rhetorical weapons, the past act raised by the What-about-ist has to be genuinely comparable to the present sin under discussion.  If the past event raised by the What-about-ist turns out to be quite different than the present sin, then the What-about-ist’s argument collapses.

Of course, even where the present and past cases are comparable, most what-about-ist arguments are nothing more than diversions.  It obviously won’t do to say, “Since your guy committed murder and got away with it, my guy should be able to murder, too.”  But sometimes an apparently shallow what-about-ism raises authentically important questions. This is particularly true where the core of the dispute is about acceptable legal or political norms.

Impeachment is a classic example.  Other than treason and bribery, the constitution does not list the particular behaviors that constitute an impeachable offense.  Article II, Section 4 speaks of “high crimes and misdemeanors,” but the meaning of those terms has been debated for over two centuries.  Therefore, when considering what should count as an impeachable offense for a president, it is reasonable to examine past presidential behavior of the same general type to determine: (a) if it really is comparable to the current supposedly impeachable behavior, and (b) whether the past and current behavior conforms to law and constitutional norms of presidential action.

So let’s examine President Obama’s use of the pardon power.

Obama’s sentence commutations for drug offenders

President Obama granted some form of executive clemency to 1927 federal defendants.  Of these, only 212 were outright pardons, which effectively wipe out the criminal conviction and all its civil and criminal consequences.  The remainder were not full pardons, but sentence reductions called “commutations” that also come within the president’s Article II, Section 2 authority to grant “reprieves and pardons.”  Virtually all the commutations were issued as part of an official U.S. Justice Department “Clemency Initiative” directed at non-violent drug offenders at low risk of recidivism who would have received lower sentences today than when they were originally sentenced because of later changes in harsh drug laws.  Priority was given to inmates who had already served at least ten years in prison.  The task of identifying candidates for clemency was shared by two units of the Justice Department, the Office of the Pardon Attorney and the U.S. Bureau of Prisons, aided by volunteer lawyers coordinated by the Clemency Project 2014, which was a joint undertaking of the American Bar Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, the American Civil Liberties Union, and Families Against Mandatory Minimums.  In total, more than 24,000 offenders petitioned for relief under the program, and President Obama commuted the sentences of 1,696.

Although the federal judiciary maintained official silence, the DOJ Clemency Initiative enjoyed broad support among judges, many of whom have long been critical of lengthy quantity-based mandatory drug sentences.  Likewise, the U.S. Sentencing Commission, which has always opposed lengthy mandatory sentences and has in recent years passed a series of guidelines amendments reducing guidelines sentences for many drug offenses, recently issued a report on the effect of the Obama commutations that remains studiously neutral on its face, but exudes disappointment that the Clemency Initiative did not produce more commutations.  The Clemency Initiative drew sharp criticism from some House Republicans, but enjoyed nearly universal approval among Democrats and widespread tacit approval from many Republicans as one stop-gap method of ameliorating overlong mandatory sentences in the interim until Congress could agree on comprehensive statutory reform.

Consider the differences between the Obama clemency initiative and the Arpaio pardon:

First, the Obama clemency grants were not full pardons.  Their recipients did not have their convictions voided and they remain subject to all the civil disabilities (like loss of voting rights or eligibility for aid programs) that dog ex-offenders in many states.  Moreover, those receiving clemency had already served some portion of their sentences, often many years.  By contrast, Mr. Trump gave Arpaio a full pardon, and did so in advance of sentencing.  Hence, Arpaio will never suffer any incarcerative punishment and will never lose any civil rights for having a felony conviction.

Second, the Obama clemency grants were the product of an official Justice Department program, sanctioned by the Attorney General and operated through regular administrative channels pursuant to internal rules and procedures and subject to multiple layers of review.  Moreover, the clemency process was facilitated with the active and enthusiastic participation of the organized American bar.  By contrast, the Arpaio pardon was not awarded as part of any program, and was not vetted by the Justice Department or recommended by the U.S. Pardon Attorney.  It was instead a personal whim of the President undertaken, according to published reports, only after Mr. Trump was told by Attorney General Sessions that trying to short-circuit Arpaio’s sentencing by ordering DOJ to drop the case would be inappropriate.

Third, the Obama clemency grants were part of a broad bipartisan shift in criminal justice policy toward de-emphasis of lengthy incarceration, particularly for non-violent drug offenders.  By the time of the DOJ Clemency Initiative, this shift had already manifested itself in congressional enactment of new statutes and U.S. Sentencing Commission amendments to sentencing guidelines lowering sentences of many federal drug defendants.  A primary objective of the clemency program was to afford relief to defendants sentenced before the effective dates of these ameliorative amendments who would otherwise receive no benefit from them.  By contrast, the Arpaio pardon was not part of any policy initiative.  It was a reward to a political supporter.

Fourth, the Obama clemency grants did not undermine the authority of the judges who originally imposed the sentences Obama commuted, or the authority of the judiciary generally.  The clemency grants did not void the judgments of conviction entered by those judges or restore to the clemency beneficiaries any rights or privileges forfeited due to the conviction.  All Obama did was to reduce the sentences of beneficiaries to levels consistent with current law.  In many cases, indeed, the clemency grants had the effect of imposing sentences commensurate with what judges would have done had their discretion not been limited by mandatory sentences.  By contrast, the Arpaio pardon undermined the authority both of the judge who was about to sentence Arpaio and of judges generally.  Not only did Arpaio escape any punishment for his repeated, flagrant, and notorious violations of federal court orders, but the pardon sent the message that those who support Mr. Trump politically can ignore the lawful orders of the federal judiciary.

This is not to say that no one objected to President Obama’s clemency program.  Some Republican congressmen did.  But mere disapproval of a presidential pardon by some officeholders in another branch neither voids the pardon nor renders it an abuse of authority meriting impeachment.  The most credible argument advanced by Republican critics was that the Obama clemency program encroached on legislative prerogatives by lowering sentences below levels that Congress had previously mandated by statute, not just for one or two offenders, but for a large number of persons.  This was not a wholly frivolous complaint.  But its force was greatly diminished by the fact that Congress itself had recently passed statutes, and the Sentencing Commission had adopted with congressional approval guidelines amendments, the effect of which was to grant the same type of relief to thousands of defendants who happened to have committed their crimes more recently.  Congress could kvetch that Obama should have waited for additional legislation giving retroactive relief to older cases or additional relief to more defendants, but it could hardly claim that the clemency initiative was fundamentally at odds with the direction of its own recent actions.

Moreover, historically, the scale of Obama’s use of his clemency authority was not that impressive.  Since 1900, Obama ranks only fifth among presidents for total pardons and commutations.  As for outright pardons, he issued fewer (212) than any president other than the two Presidents Bush.  And these rankings don’t even count the thousands of Vietnam-era draft law violators given a blanket pardon by President Carter.

In short, President Obama’s commutations of drug sentences bear no resemblance to Mr. Trump’s pardon of Arpaio.  Mr. Obama acted deliberately and in collaboration with criminal justice authorities and experts in and outside of the executive branch to award carefully calibrated sentence reductions to a subset of persons otherwise unable to obtain sentence relief under recent changes of the law.  Mr. Trump ignored all advice from inside and outside the criminal justice organs of the executive branch, and acted both precipitously and alone to protect a political ally and consciously undercut the authority of the federal judiciary to protect the civil liberties of disadvantaged minorities.

Clinton’s pardon of March Rich

I covered President Clinton’s pardon of fugitive financier Marc Rich in an earlier post.  I agreed that the Rich pardon was reprehensible and, quite plausibly, an impeachable offense (albeit one rendered moot by the fact that it was issued on the last day of Mr. Clinton’s term).  In short, the fact that Mr. Clinton behaved disgracefully, but got away with it by waiting to the last minute to place one last smudge on his deservedly tarnished legacy, provides no reason to excuse Mr. Trump.

Bottom line

In the end, what-about-ist responses to the Arpaio pardon have no heft. Indeed, comparing the Arpaio pardon to the supposedly outrageous examples of yore serves primarily to illustrate how greatly Mr. Trump deviated from acceptable historical norms.

Dean Chemerinsky, separation of powers, and the Arpaio pardon

01 Friday Sep 2017

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I am grateful to reader Chris Tucher for drawing my attention to an article in the Daily Journal in which Dean Erwin Chemerinsky of UC Berkeley Law School contends that the Arpaio pardon might be invalid.  He argues that, by pardoning Arpaio for criminal contempt of court, the president interfered with the ability of courts to enforce their own judgments and thus undercut a fundamental component of judicial authority, which in turn violates the basic constitutional principle of separation of powers.

[The Daily Journal article appears to be behind a paywall.  But you can hear Chemerinsky make his argument on a podcast at this link https://soundcloud.com/thenationmagazine/erwin-chemerinsky-why-trumps-pardon-of-joe-arpaio-is-outrageous?platform=hootsuite ]

Although Dean Chemerinsky couches this as a separation of powers issue, it is essentially the same argument made by Professor Martin Redish, who contends that the Arpaio pardon violates the due process clause of the 5th Amendment.  I’ve responded to Professor Redish and won’t repeat my argument here.  I don’t think Dean Chemerinsky, prodigious scholar though he is, adds much to the debate.  Indeed, his argument seems to me weaker than Professor Redish’s.

An argument from separation of powers is an argument about the fundamental distribution of authority between the co-equal branches, a distribution set by the original constitution in 1787.  It is profoundly implausible to suggest that the framers did not understand that conferring upon the president the power to pardon all federal offenses except impeachments had the effect of limiting judicial authority in some cases.  That, after all, is the point of pardons.  It is also implausible to suggest that the framers, many of whom were eminent lawyers, did not understand that among the things a president might pardon would be criminal contempts of court.

Moreover, the constitutional scheme is not one of strict separation of the powers and functions of the three branches, but is instead one in which the powers characteristic in each branch are often limited by a corresponding grant of authority to another.  In short, the “checks and balances” of high school civics. Presidential pardons are, by design, a check upon the occasional excesses and misjudgments of the judiciary.  There is no indication that the framers thought that judges were less prone to error in finding people in contempt than in rendering judgments for other crimes, or that judges should be given a veto of presidential pardon authority in the special case of criminal contempts. (Nor is there any indication that conditions have changed since 1787 in any way that would oblige us to revisit the framers’ original calculus on this point.)

Professor Redish, at least, recognizes the difficulty in arguing that the men of Philadelphia did not understand, and intend, what they themselves wrote.  He attempts to circumvent it by arguing that the Arpaio pardon violates, not the original constitution of 1787, but the later-enacted due process clause of the 5th Amendment.  As I explain in my previous post, I respectfully disagree with this position, but it at least avoids the absurdity of suggesting that the framers didn’t understand how pardons work, what they can be used for, and how the president’s pardon power fit into their own scheme of checks and balances.  Dean Chemerinsky’s position runs aground on that absurdity.

I am nonetheless grateful to Dean Chemerinsky for drawing attention to a Supreme Court case — Ex parte Grossman, 267 U.S. 87 (1925) — that settles the question.  In Grossman, the U.S. Supreme Court flatly and unequivocally holds that a president may pardon a criminal contempt and doing so does not violate separation of powers.  I am somewhat chagrined that I hadn’t seen the case before, but my mild embarrassment is outweighed by the fact that it upholds the position I’ve been arguing in favor of for days.

Dean Chemerinsky’s response to Grossman is simply to say that he doesn’t agree with it.  Despite his eminence, that’s not enough to overcome the plain pardon language of Article II, Section 2, and the unequivocal holding of the U.S. Supreme Court.

Of course, the fact that Mr. Trump had the constitutional power to issue pardons of criminal contempts means only that that the Arpaio pardon cannot be judicially overturned.  It says nothing at all about whether the Arpaio pardon can properly form the basis of an impeachment proceeding.  As I’ve said repeatedly, the primary purpose of impeachment is removal of officials who misuse the powers the constitution conferred upon them.  And abuse of the pardon power, as James Madison himself recognized, is an impeachable offense.

A due process challenge (almost certainly fruitless) to the Arpaio pardon

30 Wednesday Aug 2017

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As reported by Jennifer Rubin at the Washington Post, a group called Protect Democracy has argued in a letter to the Justice Department that the pardon of former Arizona sheriff Joe Arpaio is legally invalid as a violation of the due process clause. They adopt an argument first made in the New York Times by Professor Martin Redish. The group contends that:

While the Constitution’s pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.

Similarly, issuance of a pardon that violates the Fifth Amendment’s Due Process Clause is also suspect. Under the Due Process Clause, no one in the United States (citizen or otherwise) may “be deprived of life, liberty, or property, without due process of law.” But for due process and judicial review to function, courts must be able to restrain government officials. Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.

I’m sympathetic to the sentiment.  Indeed, it is precisely because the Arpaio pardon is so corrosive of the constitutional order that I’ve argued that it is an impeachable offense. Nonetheless, trying to invalidate the pardon itself is a non-starter.

Lots of constitutional language is vague or necessarily subject to interpretation in light of unforeseeable events.  The pardon clause is not of that sort. Article II, Section 2 says that the president, “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  That is as plain and unequivocal as any sentence the framers ever wrote. The framers could have written exceptions or qualifications into the constitution’s absolute grant of presidential authority.  They could have made pardons subject to review by the Supreme Court.  Or to override by Congress.  Or something else. They didn’t.  In short, the constitution made the president’s pardon power absolute, with one single exception – matters subject to impeachment.

The Protect Democracy authors contend that the plain scope of the pardon power in the original constitution is somehow limited by the later-enacted provisions of the Bill of Rights, specifically the 5th Amendment’s guarantee of due of process of law.  But just because the Bill of Rights was enacted after the original constitution doesn’t make it a warrant for rewriting any portion of the original constitution that one now finds inconvenient.

Let’s consider the argument for a due process limitation on presidential pardon power:

To begin, because the constitution is America’s fundamental law, in constitutional disputes of this sort, the contestants are necessarily confined to certain forms of argument.

First, one can argue from the text, particularly where the text is ambigous or open-ended.  (Textualism.) But the Article II text defining the presidents’s pardon power is clear and unequivocal.  And the due process clause says nothing whatever about pardons.

Second, one can argue from a combination of textual and extra-textual sources that the framers intended something not obvious from the text.  (Originalism.)  Here the argument would have to be that the authors or ratifiers of the 5th Amendment due process clause intended it to modify the unequivocal pardon language of Article II. There is no evidence whatever for this position.  Indeed, there is not the faintest hint of a suggestion that anyone in the founding generation ever even thought about the pardon power in connection with the due process clause.

Third, one can argue that, while a particular problem now at issue was not contemplated by the framers because technology or physical conditions or social arrangements have changed in ways they could not have anticipated, had they been able to anticipate modern conditions, they would have wanted the constitutional language to cover the problem. (A more elastic originalism.) A classic example is the judicial expansion of the 4th Amendment, which speaks of searching “houses, papers and effects,” to cover electronic communications 18th century politicians could not have envisioned.  But in this case, Mr. Trump’s pardon of Arpaio is hardly something the framers could not have anticipated. Many of them were practicing lawyers.  They understood courts, injunctions, and the power of courts to enforce their own orders. Had they wanted to carve out an exception to the pardon power for criminal contempt convictions, they could plainly have done so in Article II. They didn’t.  And there is no hint that those who enacted the due process clause only a few years later (most of them the same people) had any other view of the question.

Moreover, and this seems to me key, the framers did anticipate that a president might abuse the pardon power, and they provided a remedy: impeachment.  As I discussed in my last post, no less a figure than James Madison made that express point at the Virginia ratifying convention.

Fourth, one can disavow any interest in the intentions of the framers and treat the language of the constitution as a mere framework for an evolving set of rules, norms, and governing principles.  But even the most elastic living constitutionalist cannot (or at least should not) completely ignore what the constitution itself says.  The language of Article II, Section 2 is unequivocal.  To use the vague concept of “due process” to negate the plain meaning of another section of the constitution requires a far more powerful argument than the good folks at Protect Democracy muster.

For example, they assert that if a president were to announce that “he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.”  This is, frankly, remarkably sloppy stuff.  In the first place, merely announcing an intention to behave in a racially discriminatory way does not violate the 14th Amendment.  Moreover, even if the president were to act on his stated intention and begin issuing pardons only to white defendants, that might violate the spirit of the equal protection clause, but that would not invalidate the white pardons. Nor is it plausible to suggest that a court would order the president to start issuing pardons to similarly situated black persons.

Or consider an analogous hypothetical – assume a president announced that he intended to nominate only white cabinet members, and then did so.  Would that be outrageous?  Sure.  Would that violate the equal protection clause?  No.  Because the president’s power of nomination is plenary and not governed by legal rules.  And even if one could construct some contorted argument that the 14th Amendment was violated, what would be the remedy?  Does anyone seriously imagine that courts could order the president to withdraw nominations of the white cabinet officers, or order the president to substitute black ones?

In each of these hypotheticals, the president would be exercising, however deplorably, an undoubted constitutional power.  And in each case, there would be no constitutional mechanism to reverse the exercise of that power in the particular case.  There would be other constitutional remedies — but they are political and rest primarily with the public and Congress and not the courts.  In the second case, Congress could refuse to confirm all or some of an avowedly racist slate of nominees.  In both cases, if the president were in his first term, an outraged public could refuse to re-elect him.  Or Congress could impeach him immediately.

A due process based judicial review of presidential pardons would have to be consistent with the checks-and-balances structure written into the constitution we have. It is not. The pardon power was designed in large measure as an executive check on judicial excesses. It would hardly make sense to give the judiciary a check on that check.  And I can’t imagine how a court could fashion an appropriate standard of review of the pardon decision that wouldn’t give courts the final word on a question expressly, unqualifiedly, reserved to the president.

The real meat of Protect Democracy’s argument is that the due process clause must be read to provide a judicial remedy for every improper executive action.  That is not so. The constitution gives the judiciary the power to effect case-specific remedies for some executive improprieties, but not all.  Sometimes the constitution provides no remedy except political ones.

The Arpaio pardon is scandalous.  But it will stand.  Judges have no power to overturn it. Nonetheless, Congress has the power to remove — to impeach — the man who awarded it.

 

 

James Madison on abuse of the pardon power as an impeachable offense

29 Tuesday Aug 2017

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In several recent posts, I have made and amplified on the case that Mr. Trump’s pardon of former sheriff Joe Arpaio is an impeachable offense.  Some commenters here and on other forums stoutly resist the idea that any exercise of the pardon power can be an impeachable offense.  They insist that, because Article II, Section 2 of the constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” then this textual grant of the pardon power makes the president immune from impeachment for its misuse.

In a previous post, I explained why, as a matter of constitutional logic, this position is wrong.  Put simply, the impeachment clauses were inserted into the constitution precisely in order to provide a constitutional remedy for misuse of constitutionally granted powers.  Merely because an official act is within the scope of the official’s constitutional power does not deprive the nation of a remedy for misuse of that power. And sometimes the remedy for misuse of the conceded power is not reversal of the particular official act, but removal of the official – impeachment. For example, if a judge dismisses criminal charges against a defendant after jeopardy has attached, even if he does so groundlessly, whimsically, even insanely, the double jeopardy clause prohibits retrying the defendant. There is no remedy for outraged justice in the particular case. But the judge can plainly be impeached for this behavior. Presidential pardons are no different. Once issued, they cannot be negated. But if the pardon offends constitutional values, the president can be impeached for issuing it.

I am hoping that folks unpersuaded by this logic, folks who think that, as several commenters have put it with varying degrees of politeness, that I’m just “making stuff up,” might be persuaded by James Madison, the principal architect of the constitution’s scheme of inter-branch checks and balances.

During the Virginia ratifying convention for the federal constitution, George Mason expressed concern about the breadth of the pardon clause and indeed about the very idea of giving pardon power to the president.  In language some may find eerily prescient of the current moment, he said:

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. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

James Madison responded:

There is one security in this case [a misuse of the pardon power by the president] 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.

In short, Madison said that the remedy for presidential misuse of the pardon power was impeachment.  I stand with Madison.

For those interested, the exchange can be found at http://teachingamericanhistory.org/ratification/elliot/vol3/june18/