President Trump acted quickly after basically putting his cards on the table in a speech earlier this week in Arizona. The president pardoned Sheriff Joe Arpaio, best known for his aggressive efforts to hunt down and detain undocumented immigrants – which made him a divisive figure in the politics of immigration and ultimately earned him a criminal contempt conviction.
The ruling stems from a lawsuit brought by Latino residents in Maricopa, Arizona. These residents were able to successfully challenge the sheriff’s policies of racial profiling and illegal detentions.
However, Sheriff Arpaio repeatedly flouted court orders in that civil rights case, leading to both civil and criminal contempt rulings against him.
“I am pleased to inform you that I have just granted a full Pardon to 85-year-old American patriot Sheriff Joe Arpaio. He kept Arizona safe,” the president tweeted. In a statement from the White House, he said Mr. Arpaio gave “years of admirable service to our nation” and called him a “worthy candidate for a presidential pardon.”
The president also called his conviction “a political witch hunt by holdovers in the Obama justice department.”
The response was strong, as one might imagine.
The ACLU Deputy Legal Director, Cecilia Wang, said, “With his pardon of Arpaio, Trump has chosen lawlessness over justice, division over unity, hurt over healing. Once again, the president has acted in support of illegal, failed immigration enforcement practices that target people of color and have been struck down by the courts. His pardon of Arpaio is a presidential endorsement of racism.”
California Attorney General Xavier Becerra said in a statement, “Former Sheriff and convicted criminal Joe Arpaio has shown America his true colors. He demonstrates an embarrassing contempt for the 
rule of law by hiding behind a disgraceful pardon to escape the punishment our laws prescribe for lawbreakers. Donald Trump shares in that disgrace and contempt through his exploitation of the pardoning powers of the presidency. These cowardly acts of abuse of power are not the lessons our children should learn.”
The pardon was condemned by the Muslim civil rights group CAIR (Council on American-Islamic Relations), which said in a statement, “The unconscionable pardon of Joe Arpaio once again sends the troubling message that Mr. Trump sees himself not as president of the United States, but as the leader of a resurgent racist movement within our nation. It is even more disturbing that President Trump would use the cover of a potential natural disaster impacting millions of Americans to avoid public scrutiny of his reprehensible action.”
Normally speaking, a president has unlimited powers to pardon those convicted of a crime as laid out in the Constitution. However, Northwestern Law Professor Martin Redish, in an op-ed this week in the NY Times, calls that into question in this case.
Professor Redish writes, “This is uncharted territory. Yes, on its face the Constitution’s pardon power would seem unlimited. And past presidents have used it with varying degrees of wisdom, at times in ways that would seem to clash with the courts’ ability to render justice.”
However, he suggests the Arpaio case is “different.” He notes, “The sheriff was convicted of violating constitutional rights, in defiance of a court order involving racial profiling.”
Writes the professor, “Should the president indicate that he does not think Mr. Arpaio should be punished for that, he would signal that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies.”
The question is what is the remedy. And many would argue the only possible redress would be impeachment here. As Professor Redish puts it, that is “itself a politicized, drawn-out process.”
Instead, he offers “another route.” He writes, “If the pardon is challenged in court, we may discover that there are, in fact, limits to the president’s pardon power after all.”
He continues, “The only effective means courts have to prevent or stop governmental violations of constitutional rights is through injunctions. But injunctions have teeth only when they have the potential of a contempt conviction behind them. In other words, in issuing an injunction, a court is saying, ‘stop doing that or else.’ The ‘or else’ is a criminal conviction for contempt, leading to a fine, imprisonment or both. Absent the ‘or else,’ the injunction is all but meaningless.”
The professor continues, explaining, “But if the president signals to government agents that there exists the likelihood of a pardon when they violate a judicial injunction that blocks his policies, he can all too easily circumvent the only effective means of enforcing constitutional restrictions on his behavior. Indeed, the president could even secretly promise a pardon to agents if they undertake illegal activity he desires.
“In American constitutional democracy, democratic choices are limited by restraints imposed by the Constitution. The due process clause of the Fifth Amendment dictates that neither life nor liberty nor property may be deprived absent ‘due process,’ which the Supreme Court construes to require adjudication by a neutral judge.
“In short, under the Constitution one cannot be deprived of liberty without a court ruling upon the legality of the detention. The power of courts to restrain government officers from depriving citizens of liberty absent judicial process is the only meaningful way courts have to enforce important constitutional protections. But if the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power.”
The professor raises an important question which is: if the President can in fact get his surrogates to violate court orders, and then can pardon his surrogates when they do violate court orders, then he has effectively rendered the court neutered in terms of its ability to act as a check upon his administration.
There is a remedy to that and that is impeachment, but, as we have seen, impeachment is not only extreme but extremely partisan.
It is one man’s legal theory to be sure, and an untested one at that, but there is a logic to his point.
—David M. Greenwald reporting
“This is uncharted territory” No it’s not. Dude is just desperately seeking attention. Where is the presumption that pardons are for criminal cases only? It’s most likely that he got stoned on some hash oil, had a fantasy that involved lots of circular reasoning, and sent it off to the NY Times before he had his chocolate chip cookies and went to sleep. It’s like a bunch of stoners saying “what if each piece of dust had a universe in it and then there a piece of dust in that universe and it also had a universe in it, man that would be incredible”
There is no substance whatsoever in this piece.
“There is no substance whatsoever in this piece.”
As I said, he raises a legitimate concern about the separation of powers if the president’s people can simply ignore court orders with impunity.
Nixon was pardoned in advance without charges being adjudicated and despite the fact he appointed Ford as his vice president when Spiro Agnew resigned. Scooter Libby had his sentence commuted for a case that involved direct political malfeasance. Both cases were far more egregious than this one and if neither of those were overturned why this one? This is not addressed at all. Just a fantasy.
You act as though neither were problematic and controversial.
I have stated in other places I felt the pardon of pink shorts was unwise. However under the theory given in this article it is a minor case compared to the ones above as:
1 the case was adjudicated and sentence rendered
2 Pink shorts was at no time working for the executive branch and in fact the behavior in question happened before Trump was elected
3 pink shorts at no time played a significant part in the election of Trump unlike the Ford/Nixon case where you could make an argument for quid pro quo
Since none of these cases were overturned the author has given no basis for why a court would go adventuring on this one.
Dear Jim,
If you want substance maybe you should take a look at the DOJ’s standards for consideration of pardons: https://www.justice.gov/pardon/about-office-0#s3. Here’s a quote: “In general, a pardon is granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence. The Department’s regulations require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application (28 C.F.R. § 1.2). In determining whether a particular petitioner should be recommended for a pardon, the following are the principal factors taken into account.”
Robert,
I believe you are referencing the wrong document. Note that Nixon was not even convicted. For the source read this:
“he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The author does not even provide a basis to overturn the pardon except to say that perhaps someone can figure it out.
Didn’t stop Ford from pardoning Nixon… Nixon was not convicted, and served no sentence (except, perhaps by historians)… a ‘pre-emptive strike’ as it were… don’t think he even lost his pension or ‘franking’ privileges…
Interesting debate over whether Ford did the right thing, most believe that cost him reelection.
“most believe that cost him reelection” I agree but that, and impeachment, are the penalties that presidents face. A very different thing than some opium fueled fantasy about a court overturning this pardon.
Actually it was the double digit inflation (remember Whip Inflation Now?), double digit unemployment (he “inherited” both of those), and his reputation as ‘His Accidency’ … only President who was never elected as President or Vice President… he only served two years (plus 8 months as VP)… Nixon had 2 vice presidents in a six year period… only one was elected… the pardon might have cost him a few votes, but was not pivotal. [Ford’s VP was appointed, as well].
Nixon’s second term was a CF. The entire admin was tainted. I remember the 1976 election well… the pardon was never brought in, as many believed Ford did what he believed to be the right thing in trying to end the disgraces of Nixon and Agnew. Agnew didn’t need a pardon… he pled no contest to the lesser charges, accepted with the stipulation he resign from office. He served no time for his crimes…
No, most those of voting age at the time do not think the pardon itself had any real effect in the 1976 election. I know for a fact it didn’t affect my vote… Carter won in a phenomena similar to 2016… change, ANY change, in the status quo, particularly the economy…
I remember the 1976 election very well and completely disagree with your assessment. Ford dropped more than 20 points in the polls immediately after the pardon and never recovered, continuing to drop except for a brief spike around the Mayaguez incident until he hit levels almost as low as where Donald Trump is today.
I think it is very reasonable to say that the pardon was a major factor in his narrow loss to Carter, along with the impact of Reagan’s challenge in the primaries and his general image as being a not-very-bright bumbler. Eventually the public came to accept Ford’s premise in pardoning Nixon.
http://www.gallup.com/poll/23995/gerald-ford-retrospective.aspx
Don… there is a difference between ‘reasons’ for voting a certain way, and ‘excuses’…
For the vast majority of those voting in 1976, they had probably half a dozen reasons for voting for Carter vs Ford… if those reasons were placed in rank order of importance, the economy, the Mayaguez incident, general mistrust of the Nixon admin, etc. would have been higher ranked… yeah the pardon was probably on everyone’s list, but not higher than fourth on anyone’s…
Guess we’ll have to agree to disagree on whether the outcome was affected by the pardon… Ford came within ~2% of winning the popular vote… a 1% shift would have resulted in a tie… Ford came within ~5% on the electoral vote… a 2.5% shift would have resulted in a tie. The south voted for a ‘southern boy’… the west voted for Ford. See the maps… [I see no causation due to the pardon]
https://en.wikipedia.org/wiki/United_States_presidential_election,_1976#Republican_Party
Just like if Trump runs again, it is unlikely that this pardon will weigh heavily on the balance sheets… hard to tell, as the Prez’s approval ratings are so low, that it can’t really plummet… 15% of a small number is a small number… seven months into his term… of course that’s all due to the media [NOT!].
It will be other reasons, as it was in 1976. One way or another…
It’s also possible, and probably so, that Ford didn’t follow the guidelines – or equally possible that the guidelines were promulgated to guide future presidents. And bad precedents don’t make it right – Dred Scott and Korematsu for instance.
You are correct… bad precedents and bad presidents don’t make anything right…
And I also strongly suspect (agree) that the guidelines were instituted/changed after 1974…
The DOJ guidelines are for those people who are looking for a path to get in front of the president. People like pink shorts and Marc Rich don’t need to go that route, they already know the decision maker.
Jim
“There is no substance whatsoever in this piece.”
“It’s most likely that he got stoned on some hash oil, had a fantasy that involved lots of circular reasoning, and sent it off to the NY Times before he had his chocolate chip cookies and went to sleep.”
After following Robert’s advice, you might also consider that if you want more substantive pieces, you might want to consider posting more substantive comments than the above.
Plus given his reputation, you’re attacking a pretty distinguished scholar and an expert on this subject area: “Described in a review of his book, Judicial Independence and the American Constitution: A Democratic Paradox (Stanford; 2017) as “the foremost scholar and theorist of American judicial independence,” Professor Redish is the author or co-author of more than 100 articles and 17 books. Stanford University Press published his book, The Adversary First Amendment: Free Expression and the Foundations of American Democracy, in 2013, and his book, Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit, in 2009.” But hey let’s just put people down who you know nothing about.
Scholars like to get stoned too…
But without evidence, you’ve basically libeled him.
He provides no evidence for his theory either so I’m just emulating him. In my jurisdiction recreational cannabis is legal so it would be challenging to prove libel.
David
Redish opinion he gave in this matter is meaningless , worthless and baseless . He is just Redish or Greenish in the Presidential power to pardon. The opinion he gave is not a legal opinion. He speculates and stirring the pot for the ACLU pleasure. . Lamenting .
Tia
Jim is not a socialist democrat from ACLU . You don’t have any clue whether Redish opinion has any legal meaning . ACLU have full bag of guys like Radish to harass President and his administration .
If an “un-do” of the pardon were to reach the Supreme Court, pretty sure it would be rejected, if for no other reason, that the concept of ‘double-jeopardy’ applies.
There is another ‘remedy’, moving forward… a constitutional amendment as to constraining the power to pardon. Don’t hold your breath on that one!
As to the former sheriff, the issue is a ‘done deal’. Finis. Over. Unless there are other valid charges not covered by the pardon…
As usual ,occasion to harass President Donald Trump
PARDONS GRANTED BY PRESIDENT OBAMA 2009-2017
https://www.justice.gov/pardon/obama-pardons
He tends to give us many occasions.
He is excellent in this matter . No any doubt about
The White House comment in full, issued on Friday night.
Today, President Donald J. Trump granted a Presidential pardon to Joe Arpaio, former Sheriff of Maricopa County, Arizona. Arpaio’s life and career, which began at the age of 18 when he enlisted in the military after the outbreak of the Korean War, exemplify selfless public service. After serving in the Army, Arpaio became a police officer in Washington, D.C. and Las Vegas, NV and later served as a Special Agent for the Drug Enforcement Administration (DEA), formerly the Bureau of Narcotics. After 25 years of admirable service, Arpaio went on to lead the DEA’s branch in Arizona.
In 1992, the problems facing his community pulled Arpaio out of retirement to return to law enforcement. He ran and won a campaign to become Sheriff of Maricopa County. Throughout his time as Sheriff, Arpaio continued his life’s work of protecting the public from the scourges of crime and illegal immigration. Sheriff Joe Arpaio is now eighty-five years old, and after more than fifty years of admirable service to our Nation, he is worthy candidate for a Presidential pardon.
As sheriff, Arpaio had a history of racist practices and used his authority to harass Latinos, including U.S. citizens. He has no respect for the rule of law and defiantly violated lawful court orders. His pardon was a blatant political act by Donald Trump as a quid pro quo to a supporter and to pander to the racist elements in his base in the face of historically eroding support.
“quid pro quo” Do you have some evidence of that?
“His pardon was a blatant political act by Donald Trump as a quid pro quo to a supporter and to pander to the racist elements in his base in the face of historically eroding support”
Reading the comment in context does not suggest a literal quid pro quo
With all due respect to Jim Hoch, Esq., I wouldn’t be so quick to dismiss Professor Redish’s analysis. Abuse of the pardon power is an attack not only on the rule of law but on the judiciary. The courts are not likely to take kindly to that. If anyone is likely to present a set of facts that will push the boundaries and impel the courts to push back, it is Donald Trump. Perhaps not with the Arpaio pardon alone, but it’s likely he’s just getting started (Flynn? Manafort? Kushner?).
“You don’t need a weather man To know which way the wind blows”
Let’s look what he believes passes for logic:
“But if the president signals to government agents that there exists the likelihood of a pardon when they violate a judicial injunction that blocks his policies, he can all too easily circumvent the only effective means of enforcing constitutional restrictions on his behavior. Indeed, the president could even secretly promise a pardon to agents if they undertake illegal activity he desires”
Now if you spend all day with the state legislative leadership you may think this makes sense. However it completely fails to be applicable to the current situation. The actions in question happened during the Obama administration. Did pink shorts have some reason to believe that Obama would pardon him? Did he have some reason to believe that Trump would be elected and that Trump would pardon him? So this statement has no relevance to the current situation whatsoever.
I did cite two pardons above of people who may have taken actions that could possibly meet this standard, Nixon for appointing the man who pardoned him and Scooter for taking actions in the administration of the man who pardoned him. Neither case was accepted for review and therefore this principle has been rejected previously. Now we have a case that does not meet the thesis yet the courts are supposed to accept this case based on a principle that does not apply on it’s face and has been rejected previously?
Stoner logic.
Eric
Did you ever read everything what Redish wrote ?. I would say nothing if Arpaio would be 50 years old and would be convicted by court of law for violation of civil and human rights . He was Sheriff for 25 years and he never found himself in the court for alleged crimes . I can’t find any evidence on the web showing that due to harsh condition allegedly Arpaio created for prisoners in the facilities he maintained he anybody death or anybody was crippled or disabled etc. 25 years in service as a Sheriff is long time to get the guy. I wrote previously that Napolitano was a Governor and Attorney General of the State of Arizona and she held Chief of Homeland Security position in the President’s Obama administration and she was deporting people caught by Arpaio and other sheriffs . She deported over 2 million people and she destroyed many families and kids lives . Many people on Davis Vanguard were crying about the deportation of undocumented or illegal immigrants.
Here we are talking here to euthanize 85 years old Sheriff by throwing him into prison . He no need help from ACLU and Radish to die. He is quite old. For the humanitarian reason alone he should be pardon.
How about pardon for the former Democratic California Senator 70years old Leland Yee who was thrown into prison by Napolitano with help from her buddies like Senator Feinstein , Jerry Brown , Richard Blum, Darrel Steinberg and Federal Prosecutor Malinda Haag . Leland Yee is a Chinese naturalized US citizen and he could be stripped from citizenship and deported to China by Trump’s administration . Senator Lee constantly appeared on the Davis Vanguard as hero and Davis Vanguard now does not want say anything about Senator Lee whereabouts. I am wondering why ? Because he is Chinese not Jewish or Latino . ? Structural Racism and Discrimination . ?
Actually Jim, the current DOJ instituted the criminal contempt complaint, not Obama’s. It is ironic that the DOJ, which usually vets and recommends pardons is quite quiet on this one. The President’s disregard for the rule of law is pretty blatant here – pardoning someone for a crime charged by his own federal attorney.
And, prior to sentencing… another wrinkle… he could have done the pardon shortly after the sentence was determined… at least sentencing would have sent a message… to LEO’s of all ages…
He could have also let the conviction stand and commuted the sentence.
Robert,
Thank you for that. The point I was trying to make was that when pink shorts decided to do what he did he had no expectation that there would be a President Trump or that said president would pardon him.
“ You don’t have any clue whether Redish opinion has any legal meaning . “
You are correct. I do not know personally since this is far outside my area of expertise. However, I think given his area of expertise that he is likely better informed on this particular issue than are any of us who post on the Vanguard. Therefore I believe that your statement applies equally to Jim, you, me …. and perhaps slightly less to Robert and David because of their backgrounds.
Tia:
My “BS Detector” is cross-platform.
Jim
“How about pardon for the former Democratic California Senator 70 years old Leland Yee who was thrown into prison”….
Surely you are not suggesting that Leland Yee should not have been convicted of accepting bribes and gun trafficking charges that he admitted to ? Incarceration is another matter, but would you have wanted. him not to be convinced, incarcerated, or both. Do you think that he should be pardoned ? If the answer to all is know, I do not see the point of your post. He broke the law, there should be consequences for having done so.
I believe that the same applies to Arpaio. He broke the law. There should be consequences. I believe that what we are seeing is the foundation of a two tier system of justice. One set of rules for Trump supporters. An entirely different set of rules for his friends and supporters. I see this as a very dangerous precedent.
Tia
What do you know about Leland Yee’s and his incarceration .? Nothing ? He is a political prisoner . I will address his incarceration in the Court of Appeal on Monday . I have scheduled Oral Argument in the 3DCA on Monday in the First Amendment Case . . Do you remember who Napolitano hired to investigate Katehi for her alleged missteps . Melinda Haag who blackmailed Yee with 20 years in prison if he not admit guilt . I know details what happened and why it happened but I am nobody and I ma powerless to fight corrupted to the bones politicians like Feinstein , Garamendi , Steinberg and others like Chief Deputy Secretary of corrupted Governor Grey Davis, Shelleyanne Chang or former corrupted Chief Deputy for Jerry Brown , Jacob Appelsmith who is today UC Davis Chief Counsel. He was transferred from Jerry Brown’s office at same time as Feinstein sent Napolitano to the UC office of the President to protect her husband from prosecution. The White collar criminal former UCD Chancellor Vanderhoef died in october 2015 . Garamendi provided him recognition on the US Congress floor after he died but nobody give him recognition on the California Assembly or the California Senate floor . It was obvious that nobody wanted to be associate with his white collar crime activities during his tenure as a UCD Chancellor . Do you want read my letter to Garamendi about. Because of Yee , UC former President Yudof and UCD Chancellor Vanderhoef in 2011 were facing one years in prison. The State Audit Yee requested in 2010 if properly conducted would most likely lead to prosecution of Feinstein’s husband Blum , Vandrehoef , Grey Davis and many others . The 2010 audit was the last Yee’s mistake in his activities aimed at UC cronies and his colleagues from California Senate . Steinberg got on him in 2010 and in May 2011 FBI was on his tail before state audit was finished . FBI molested him for three years to frame him . UC cronies to keep eyes on Yee and others like him politicians , recruited Chief of FBI in 2004 (just after Grey Davis was uprooted by Darrel Issa’s 1,7 million dollars . I believe that you noticed that Grey Davis who was uprooted in 2003 at age 62 never held any public office and he never tried to get any public office . Don’t you make you wonder why such experienced politician disappeared from the public view .
“For the humanitarian reason alone he should be pardon.”
No. For humanitarian reason along he should be allowed to stay in his home. A pardon is not necessary to achieve that end. He could be sentenced to parole, or to house arrest.
Trumps full statement describes what he sees as the many good things that Arpaio has done as exculpatory. I suggest that he would not handle the situation the same way if there had been a political opponent who had rendered as much service to the country, committed a crime, and then requested pardon. One’s prior good deeds should not preclude penalty for one’s law breaking.
Tia
You are true humanitarian and missionary of peace and compassion .
“Nixon was pardoned in advance without charges being adjudicated and despite the fact he appointed Ford as his vice president when Spiro Agnew resigned. Scooter Libby had his sentence commuted for a case that involved direct political malfeasance.”
Jim Hoch:
But you keep raising these errantly I think believing that the Professor’s point has to do with the political nature of the use of presidential pardon power. I think the Professor’s point here has to do with the use of presidential power to defy a court order, which resulted in a contempt conviction, not the political nature of the crime. And I think that’s very different for reasons I laid out both in this piece and in my comments.
Finally I’m going to ask you to stop accusing people of using stoner logic on this site.
The professor’s point is that at the point that when someone contemplates an action there can be a corrupt agreement between the person taking the action and POTUS to pardon the person if they should face criminal sanctions due to the action. His arguments are entirely prospective, that is there is an agreement or “likelihood of a pardon” when a person commits a crime.
This case is retrospective, there is no possible way for pink shorts to have believed he would be pardoned at the time he committed the actions that brought him into contempt unless you have evidence that I am not aware?
If you want to say that pardons can be overturned based on the theory that people are more likely to commit crimes if they believe some future individual in office may pardon them then you would eliminate all pardons. Gov Brown just pardoned a bunch of murderers. Do you believe that people are going to commit murder because a future governor may pardon them?
More fundamental is this: “The only effective means courts have to prevent or stop governmental violations of constitutional rights is through injunctions. But injunctions have teeth only when they have the potential of a contempt conviction behind them. In other words, in issuing an injunction, a court is saying, ‘stop doing that or else.'”
If they have no ability to enforce their actions, it becomes akin to stripping the court of authority.
Jerry… the record indicates that Arpaio’s “crime” was a misdemeanor… unlikely he would have served even a month in jail, much less prison.
We’ll never know…
Howard
Howard
I would rather like to be pardon by the President of the United States at the age of 85 than go to jail for 3 month . It looks a much better in the history book. Come on Howard . Give the grandpa a break .
He certainly didn’t give people a break when housed them outdoors in 120 degree heat or when he blatantly violated court orders, so why should he be given a break?
Prospective in terms of from this point further, but the bigger point is the one you keep ignoring which is that contempt is the enforcement mechanism for the courts, but also an investigator. What happens if someone ignores Mueller’s subpoena’s, the court can hold someone in contempt and Trump can pardon them? I don’t know if he would dare, but the only recourse would be impeachment, a political process that ends up being disproportionate to most of these sorts of offenses. I think the professor makes an important point that you are glossing over by looking at narrow circumstances in this case.
Impeachment, or removal through the 25th amendment, is the only enforcement mechanism. Note that if a president had the kind of discussion that as noted in the article (agreement to pardon prior to some action) it would be a conspiracy and conspiracy to commit a crime is an appropriate trigger for an impeachment as Mr. Nixon discovered.
Most presidents give impeachment a wide berth but Trump is different. He not only seems to be inviting it, he has gone out of his way to antagonize the jury.
Or if the president asked the attorney general to intervene, or something. Somehow obstruct the process of justice from going forward. I think there’s a term for that. Not sure what it is.
“Impeachment, or removal through the 25th amendment, is the only enforcement mechanism. ”
As an enforcement mechanism it’s too big a penalty to deter the smaller type of behavior anticipated here. It’s also too partisan.
“Note that if a president had the kind of discussion that as noted in the article (agreement to pardon prior to some action) it would be a conspiracy and conspiracy to commit a crime is an appropriate trigger for an impeachment as Mr. Nixon discovered.”
I think you’re putting too much on the prior conversation, it would be more of an understanding than an overt conversation.
“Most presidents give impeachment a wide berth but Trump is different. He not only seems to be inviting it, he has gone out of his way to antagonize the jury.”
Something we agree on.
Mark Osler, a law professor at the University of St. Thomas and a leading expert on the pardon power, wrote: “Trump didn’t even try to follow the rules (though the Constitution does give Trump that ability). There is an established process for seeking clemency that begins with filing a petition. But rather than some citizen seeking mercy, Trump sought out someone he wanted to reward. Meanwhile, more than 11,000 people who followed the rules and did the work to file a thought-out petition still await a decision. Perhaps more importantly, the Arpaio pardon violated a bedrock rule for recent clemency considerations: to be successful, an applicant must express remorse for his acts.”
In the Washington Post, Cornell Law Professor Josh Chafetz wrote that while “many have insisted that the president’s action flouts the rule of law[, and some] have even argued that it’s outright unconstitutional[,] that’s the wrong way to criticize the Arpaio pardon. The Constitution grants the president the Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. The power is broad and (except for the impeachment carve-out) unqualified.”
Similarly, at Buzzfeed, Zoe Tillman explains that the Department of Justice did not review the pardon, but it also did not need to do so. “The US Constitution gives the president broad power to issue pardons and commute sentences, and there is no law requiring the president to consult with the Justice Department,” Tillman explained.
The biggest problem with pardon power is that it is not used enough.
On Twitter, University of Kentucky law professor Brian Frye wrote: “Pardons are an essential, fundamental part of the law. I know the government will err; I pray that it always errs on the side of clemency.”
David Menschel, a criminal defense lawyer in Portland, Oregon, wrote: “The 1000s of worthy commutations killed by Obama’s DOJ is a far greater moral failing than Trump’s awful pardon of Arpaio.”
Nkechi Taifa, the convenor of The Justice Roundtable, wrote, “I am outraged because we as a progressive community are too often stymied by what the conservative and law enforcement communities think about our thoughts and actions and, as a result, are afraid to go bold. Trump went bold. He cut right through the red tape and pardoned his bigoted buddy … The handwriting was on the wall toward the end of the Obama administration. The Executive was urged, time and again, to go bold. Instead, although well-meaning, the progressive administration adopted a process on top of an already flawed process … [W]e as a progressive community must at all times unabashedly and boldly step up to the plate for justice.”