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.
