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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: Arpaio

The Black Pardon

16 Thursday May 2019

Posted by crosbysamuel in Uncategorized

≈ 2 Comments

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Arpaio, canada, Conrad Black, Constitutional, conviction, D'Souza, donald trump, fraud, impeach, Impeachment, Mikaela Colby, Obstruction of Justice, pardon, pardon power, Paul F. Eckstein, president, trump

President Trump has pardoned Conrad Black of convictions for fraud and obstruction of justice from 2007. Black is a friend of Trump’s and a vocal supporter; he published a book entitled ‘Donald J. Trump: A President Like No Other’ last year. Black spent 3 years in prison as a result of his conviction and was banned from the United States for 30 years. This is the latest in a series of politically questionable pardons; readers will recall the Arpaio and D’Souza pardons. But the questions remains: when does a non-kosher pardon become an abuse of pardon power?

Paul F. Eckstein and Mikaela Colby tackle this question in their article entitled ‘Presidential Pardon Power: Are There Limits and, if Not, Should There Be?‘ published in the Arizona Law Journal. In that article the authors examine the history of the pardon power, its constitutional limits, and what remedies may exist for its abuse. They ultimately conclude that new limitations need to be introduced.

black.jpgDarren Calabrese / THE CANADIAN PRESS

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Trump Condemns Arpaio to Guilt

20 Friday Oct 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, Abuse of Power, Arpaio, Arpaio pardon, bolton, pardon

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

 

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People are Talking Arpaio

03 Sunday Sep 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, Arpaio, impeachableoffenses.net, new york times, pardon, slate

News sources and blogs alike have been discussing Prof. Frank Bowman’s analysis of President Trump’s pardon of Arpaio, which can be found both here and on slate.com. Notably, the New York Times highlighted Professor Bowman and the work he has done on impeachableoffenses.net for its centrist perspective. Additionally, Professor Bowman’s argument was referenced and summarized in this article published by the Independent. Many others cited the argument as well including Metro, the Journal of the Civil War Era, NJ Today, Outside the Beltway, and BillMoyers.com. We here on impeachableoffenses.net look forward to more lively commentary in the near future!

636274475421162300-PNILaVoz-08-01-2014-LaVoz-1-A004--2014-07-31-IMG-VOZ0801-Arpaio.jpg-1-1-K08487AU-L460306135-IMG-VOZ0801-Arpai.jpgDavid Wallace/The Republic

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Comparing Apples (Gala) with Apples (Fuji): The Arpaio & Marc Rich Pardons

28 Monday Aug 2017

Posted by impeachableoffenses in Uncategorized

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Arpaio, Marc Rich, Marc Rich pardon, pardon as impeachable offense

By Frank Bowman

In a recent “Impeachable Offenses” post (also published on Slate) I suggested that Mr. Trump’s pardon of former Sheriff Arpaio constitutes an impeachable offense.  Several commenters on both Slate and the blog have said, in effect, “Well what about President Clinton’s pardon of Marc Rich, huh?”  The apparent import of these rhetorical questions was that, since I am a Democrat, I must think that the Rich pardon was acceptable presidential behavior and therefore, since I believe the Arpaio pardon was not, I’m a loathsome hypocrite.

Au contraire. As it happens, I have always viewed the Rich pardon as a contemptible abuse of the pardon power. For those who don’t remember, on the last day of his presidency, Bill Clinton pardoned Marc Rich, an indicted, fugitive swindler. There was no plausible case for the pardon, either on legal or humanitarian grounds.  It was issued over the strong objections of the U.S. Attorney’s Office that indicted Rich and the U.S. Pardon Attorney.  Moreover, Rich had arranged for very large contributions to be made to the Democratic Party and the Clintons in particular in the months and years before the pardon was issued.  These included $450,000 to the Clinton Library and $10,000 to the Clinton legal defense fund.  Thus, the pardon was both objectively unjustifiable and arguably overtly corrupt.  It was the sordid capstone to a presidency that, however politically adroit, was irremediably stained by Bill Clinton’s degraded personal morals.  Indeed, it was precisely the kind of sleazy maneuver that lent credence to the often overhyped accusations against both Clintons and left an indelible taint on the Clinton “brand” – a taint that more than any other factor defeated Hillary Clinton and spawned the Donald Trump presidency.

Not only did I disapprove of the Rich pardon when it was issued, but I believed then that it might be an impeachable offense.  I still have in a file drawer the beginnings of an article I started in January 2001 suggesting that Clinton be impeached a second time for the Rich pardon. My hypothesis was that, even though Clinton had vacated the presidency, Congress might yet impeach him, convict him, and impose the penalty of permanent disqualification from holding any office of honor or profit under the United States.  After cooling down a bit, I concluded that there were serious jurisdictional barriers to such an argument, and that in any event, it was, in the real world, a frivolous proposal.  So I turned to other more worthwhile projects and the draft is still in the drawer.

But I can at least deny any imputation of partisan inconsistency.  I believed then and believe now that sufficiently egregious abuses of the pardon power are impeachable.

A comparison of the two events is instructive.  If one makes the reasonable causal connection between the pardon and contributions from Rich to the Clintons, then the pardon amounted to an exercise of presidential power in response to poorly concealed bribes.  And bribery, along with treason, is one of the two constitutionally specified impeachable offenses.  The Arpaio pardon did not result from a monetary bribe – though it is transparently a reward to a political ally.  But it is in many respects far more disturbing precisely because it is not merely an instance of personal venality, moral blindness, or even partisan calculation, but instead amounts to an attack on constitutional protections of civil liberties and on the power of courts to enforce the laws of the United States.

And, as noted in my last post, if Arpaio proves to be only the first in a series of pardons of Trump allies who fall afoul of the law, the case for impeachment should become irresistible, at least for anyone who believes in preserving the constitutional order.

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More on the Arpaio pardon

27 Sunday Aug 2017

Posted by impeachableoffenses in Uncategorized

≈ 5 Comments

Tags

Arpaio, pardon as impeachable offense, pardons

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

 

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Pardoning Arpaio: The first verifiable impeachable offense

26 Saturday Aug 2017

Posted by impeachableoffenses in Uncategorized

≈ 49 Comments

Tags

Arpaio, due process, pardon as impeachable offense, Redish

During the election campaign and in the first eight months of his presidency, Mr. Trump has done a variety of things that, once fully investigated, may prove to be impeachable offenses.  But we don’t yet know all the facts.  Thus, final judgment on those behaviors will have to wait.

Yesterday, by pardoning former Arizona sheriff Joe Arpaio, Mr. Trump committed his first verifiable impeachable offense.  To some readers, this may seem to be frantic hyperbole.  After all, Article II, Section 2, of the constitution gives a president effectively unlimited to power to pardon anyone (possibly even including himself) for any federal crime except impeachable offenses.

Professor Martin Redish argues in the New York Times that this particular pardon ought to be invalid as a violation of the due process clause, because the only effective redress for those whose rights were violated by then-Sheriff Arpaio when he defied the court’s injunction is a contempt sanction, and voiding that sanction both neuters the judicial power to enforce constitutional rights and deprives Arpaio’s victims of relief.  But even Professor Redish admits that this is a novel theory, and with respect, it simply won’t fly. Any time a president pardons someone for a criminal offense, he voids the considered judgment of some court and deprives the defendant’s victim of redress.  The constitution provides no carve-outs for cases where the underlying crime is a deprivation of civil liberties.

That being so, Trump’s defenders will ask how a president can be impeached merely for exercising a power he undeniably possesses? But this question turns the constitutional function of impeachment on its head.

The founders included in the constitution a congressional power to impeach presidents primarily to respond to misuse by the president of express or implied powers given him elsewhere in the document.

It is true that presidents and other officials can be impeached for conduct not involving the exercise of a specific official power if it intrudes somehow into the sphere of public duty. And impeachment can be proper in the case of a heinous private criminal offense which so far undercuts the moral authority and personal credibility of the offender that he can no longer effectively perform his office.

But, to the founders, the main point of impeachment was that there must be a remedy when a president perverts the powers of his office, either for personal or political self-aggrandizement or, regardless of motive, when the president’s acts threaten the proper distribution of authority among the coordinate branches or otherwise offend either law or fundamental governing norms.

The pardon of Arpaio plainly falls within this core conception of properly impeachable offenses.

  • It is an impeachable offense precisely because it involves the exercise of a constitutionally created presidential power.
  • The use of the pardon power in this case is a direct assault on core constitutional rights, statutory civil rights laws of the United States, and on the authority of courts to enforce those laws.
  • It therefore threatens constitutional civil liberties generally, as well as the viability of congressionally authorized statutory law, and it is a direct attack on the constitutional powers of the judiciary as a coordinate branch of government.
  • Accordingly, this pardon threatens to undercut one of indispensable foundational norms of American constitutional order — the rule of law.

One could, of course, make some version of the foregoing argument about many presidential pardons.  Every pardon undercuts a prior judicial decision and vitiates a court’s judgment that the defendant violated a criminal statute and ought to be punished. But here, as elsewhere in the impeachment realm, context and motive matter.

In deciding whether this pardon is impeachable, it matters that its effect (and patent purpose) is to devalue constitutional and statutory protections of a vulnerable minority.  It matters that its effect (and rationally inferable purpose) is precisely to undercut the power of the judiciary to enforce the law against officials who believe they can violate it with impunity.  And it matters that Mr. Trump’s motive in issuing the pardon is so transparently political. This is not a considered judgment that a particular individual has been unfairly treated by corrupt judges, a flawed process, or an unjust law.  It is, instead, a transparent pander to a politician’s political base.

The fact that the constitution grants the president the theoretical power to behave in this way does not deprive Congress of the power to conclude that the exercise of the power is so contrary to constitutional principles and democratic norms that it constitutes an impeachable offense.

As always, sober pragmatism reminds us that no presidential behavior, however egregious, will result in impeachment and removal unless a majority of the House and supermajority of the Senate deem it so, and that the Republicans controlling both houses have so far shown no disposition to take these steps.  The sole point here is that, should that political obstacle ever dissolve, there is now at least one constitutionally sound basis upon which impeachment could be based.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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