Saturday, August 26, 2017

Somebody Notices


Trump’s Pardon of Joe Arpaio Is an Impeachable Offense

....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. 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.

Some things worth adding:
  • The term "high crimes and misdemeanors" in the Constitution is broader than doing something technically illegal, it refers to a gross abuse of office. It doesn't matter how unlimited the pardon power is, it is still limited by the impeachment power to remedy and prevent further abuse of office.
  • Pardons normally occur despite the petitioner's crime, done in light of the other good works and redeeming features of the pardoned person. Trump didn't pardon Arpaio despite Arpaio's illegal activities, he pardoned Arpaio because of Trump's support for Arpaio's illegal defiance of court orders directing him to stop racially profiling people. While the official statement glosses over this, Trump himself is very clear, indicating this week that he planned to pardon Arpaio because Trump viewed the illegal activities as Arpaio "doing his job."

And despite all this, I'm not quite ready to say Trump's actions satisfy the grounds for impeachment. This action is one article of impeachment. Another is his violation of the emoluments clause. By themselves I don't think they're enough. Other charges like collusion with Russia to harm American democracy are still in process and not fully determined.

That Trump is unfit for office is clear, however, and he's making it likely that in addition he will soon be a good candidate for removal via impeachment (despite whatever Senate Republicans may say).


Jeffrey Davis said...

I don't understand how many impeachable offenses a prez is allowed before it's ok to impeach him. I'm probably naive but I assumed that it was 1.

David B. Benson said...

As many as it takes to cause Congress to act.

William M. Connolley said...

I think it's good that you've mentioned other pardons, because so few others writing about this do. But why doesn't the Clinton affair destroy your contention that "for decades has had an institutionalized system of impartial review of pardon petitions". Are you suggesting that Clinton's pardon passed "impartial review"? Or that it was reviewed, failed, but done anyway?

In the great scheme of things, this is (IMHO) more a minor matter of Trump boosting his fan base, *unless* you can show pretty clearly that it is well out of the range of previous uses of pardons, and I doubt you can.

What seems far more importatnt to me, quoting wiki, is "In November 2016, Arpaio lost re-election to Democrat Paul Penzone, who succeeded him as sheriff on January 1, 2017". That is to say, JA is a has-been; he's been kicked out some time ago, by his constituents.

Anonymous said...

> What seems far more importatnt to me, quoting wiki

All those who suffered because of that tyrant can seek solace in the thought that Freedom Fighters dismiss him as a Has Been while using him as a token in some silly equivalence game.

Anonymous said...

Forgot the linky:

A quote:

> Joe Arpaio’s actions over the course of his time in office were monstrous and sickening. As Arpaio’s officers were harassing, detaining, and beating citizens and non-citizens alike, with jail employees routinely calling inmates “wetbacks” or leaving them to die on the floor, Arpaio let hundreds of serious sexual abuse cases go uninvestigated, in one case resulting in a child being continually raped. He was not just a “tough” sheriff, but a cruel and incompetent one, faking clearance reports for serious crimes while abusing the power of his office to arrest and intimidate journalists, judges, and county officials. Some of Arpaio’s acts bordered on the psychopathic: in a deranged re-election plot, Arpaio oversaw a scheme to pay someone to attempt to assassinate him, even supplying the man with bomb-making materials, so that he could entrap the fake “assassin” and send him to prison, ruining the hapless man’s life. Arpaio treated the Constitution with contempt, inflicting what the Mayor of Phoenix called a “reign of terror” upon the city’s Latino community. Anybody with a hint of a conscience should be revolted by both Arpaio’s record and [teh Donald]’s pardon.

Bernard J. said...

As I understand it the thing with a pardon is that Arpaio can no longer plead the Fifth, and therefore he's exposed in any civil suit that seeks to recover damages that arose from his criminal actions. Arpaio was found guilty, and the pardon explicitly implies guilt, so a class action could cost Arpaio dearly...

Also, all of Trump's cronies who are hoping for pre-emptive or early-in-the-process pardons had better watch out for charges being filed under state law - Trump can't cast the net of his corrupt pardoning in those jurisdictions. We outside the USA are hoping that there still remain vestiges of justice that will somewhere, somehow see convicted the President of Corruption, the President of Slime, the President of Filth, the President of Putrescence...

CapitalistImperialistPig said...

Pardoning Arpaio was a bad deed, but in no historical, legal, or political way is it impeachable. If Trump starts pardoning his co-conspirators (Flynn, etc) that's probably impeachable.

Old_salt said...

"...Pardoning Arpaio was a bad deed, but in no historical, legal, or political way is it impeachable..."

Impeachment only depends on what Congress decides is a high crime and misdemeanor. Andrew Johnson was impeached for trying to remove people from his cabinet.

cce said...

Trump also asked Sessions to drop the case against Arpaio, his political ally. This is in addition to:

Asking for Comey's loyalty
Asking Comey to drop the Flynn investigation
Firing Comey over the Russian investigation
Saying that if he had known Sessions would recuse himself, he never would haven been selected for the job.
Asking McConnell to protect him from congressional probes.

Any of these would be serious evidence for obstruction of justice. All of them taken together create abuse of power fireball.

CapitalistImperialistPig said...

@Old_Salt - And Congress is controlled by people who largely agree with Trump and live in terror of his supporters. He is quite safe until that changes.

Brian said...

Jeffrey - individually, each action might not be enough to say this president must be removed, but collectively they could be. That's more of a political judgment than a legal judgment.

William - the administrative pardon system has been the way vast majority of people get pardons in the past, while Trump has made abuse of power the only method of getting a pardon from him, at least so far. Clinton's pardons of his brother and of Marc Rich were petty acts of corruption, but I did think the pardon of his brother was a more justifiable impeachable offense than the perjury charge actually brought against him. Clinton did it on his last day in office though. Can't imagine what Trump will try on his last day.

Bernard J. said...

"Can't imagine what Trump will try on his last day."

If there's any justice remaining in US governance, impeachment will come with as little telegraphing as possible and Trump won't get the chance to sign get-out-of-jail-free cards for all of his corrupt cronies.

Alternatively, if Trump is found under impeachment to have been corrupt and/or incompetent, there may be an argument to have SCOTUS consider whether his pardons are valid. If not, and if he gets away with selling out the US justice system for the benefit of his friends, the nation's reputation will be so catastrophically damaged on the world stage that the States will be permanently relegated to (rich and dangerous) banana republic status. Many in the nation might consider this a trivial insignificance, but the country's loss of moral standing is profoundly important for its ongoing ability to deal with the other 98% of the world. Reputation is hard currency in negotiation, and in many other social interactions. It's a point much belaboured through the ages:

"Regard your good name as the richest jewel you can possibly be possessed of - for credit is like fire; when once you have kindled it you may easily preserve it, but if you once extinguish it, you will find it an arduous task to rekindle it again. The way to a good reputation is to endeavour to be what you desire to appear."
- Socrates

"Reputation, reputation, reputation! O, I ha' lost my reputation! I ha' lost the immortal part of myself, and what remains is bestial."
- William Shakespeare, Othello

"Good name in man and woman, dear my lord,
Is the immediate jewel of their souls;
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed
– William Shakespeare, Othello

"Mine honour is my life; both grow in one;
Take honour from me, and my life is done
- William Shakespeare, King Richard II

"Reputation is only a candle, of wavering and uncertain flame, and easily blown out, but it is the light by which the world looks for and finds merit."
- James Russell Lowell

"If you once forfeit the confidence of your fellow citizens, you can never regain their respect and esteem. It is true that you may fool all of the people some of the time; you can even fool some of the people all of the time; but you can’t fool all of the people all of the time."
- Abraham Lincoln

"Civilization is first of all a moral thing. Without truth, respect for duty, love of neighbor, and virtue, everything is destroyed. The morality of a society is alone the basis of civilization."
- Henri Frederic Amiel

"A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was."
- Joseph Hall

"Glass, china, and reputation are easily cracked, and never mended well."
- Benjamin Franklin

"Nothing deflates so fast as a punctured reputation."
- Thomas Robert Dewar

Oh, and a miscellaneous thought on pardoning...

"Power corrupts. Absolute power corrupts absolutely."
– Lord Acton

Jeffrey Davis said...

I think we have a bit of amnesia. George HW Bush pardoned all of those malefactors in the Iran-Contra affair. Particularly any who could have testified against him. For some reason, he's considered the "good" Bush and gets grandfatherly/sentimental press coverage. He was, of course, a swine. He was also the creep who opened the floodgates for Presidents to cash in on their time in office. Reagan's popularity plummeted when he cashed in on the presidency in a round of paid speeches in Japan. George HW Bush hooked up with the Carlyle Group, the country yawned, and the rest is greasy history.

Anyway, the defensive self-serving pardons by thuggish presidents won't find its first iteration in Donny Two Scoops.

Kevin O'Neill said...

JD writes:"George HW Bush pardoned all of those malefactors in the Iran-Contra affair. Particularly any who could have testified against him."

Ummm... the Iran-Contra debacle occurred under President Reagan. Bush was VP, but always maintained that he was "out of the loop" and no evidence has ever surfaced that any of those pardoned would have contradicted him.

Bernard J. said...

Jeff, the way I see it the qualitative difference is that the Iran-Contra crowd had at least relevance to the political running of the nation, and whether justified or not there's at least a semblance of explainability for the pardon.

Arpaio has no obvious reason for presidential clemency that I can see, beyond the corruption of handing out benefit for people inside The Circle of Favour. If Arpaio is indeed a figure worthy of federal clemency then the message to the world is that US priorities are somewhere down there with Nazi Germany's and aparteid South Africa's.

And that's hugely sad.

Bernard J. said...

Following my comment above, from 27 August:

The intelligence and legal professions in the USA obviously know about and understand the depth of Trump's corruption, even if half the country and most of the media cannot grok it. I'm hoping that this current steamroller follows the Trump university outcome, sans the settlement at the end...

Jeffrey Davis said...

Bush's claim to have been out of the loop on Iran-Contra is buttressed by ... the lack of testimony of the men he pardoned. You can believe what you like, but pardoning the thugs responsible for the scandal definitely short-circuited our capacity to find out who did what AND the greased the wheels for future thuggish actions in the future.

Trump pardoning himself and his family would definitely not be the first time the power was used to protect the pardoner and his allies.

Kevin O'Neill said...

JD - so your evidence that Bush knew is that there is no evidence that he knew?

I could excoriate Bush for a hundred things, but it serves no purpose to blame him for things he *didn't* do. It merely taints all other criticisms as partisan whining.

Jeffrey Davis said...

KD, well, no. My evidence is that he pardoned the men responsible, his status as VP, and former head of the CIA. His claim to be "out of the loop" would strain credulity even absent the pardons.

I hope you aren't thinking "evidence" and "proof" are synonyms. Do I have proof? No. Pardoning unrepentant thugs en masse is evidence.

Think of it this way. Clinton didn't pardon Susan McDougall until she'd served her time. Would people have screamed about it if he had? Jim McDougal died in prison. Would people have screamed about it if Clinton had pardoned McDougal? Would it have been seen as "evidence"?

And every other point I made is still so. Pardoning the thugs kept them from testifying and will only encourage more malefactors in the future. Donny Two Scoops isn't the first.

Jeffrey Davis said...

I should have emphasized: the pardons came prior to their trials.

copy and paste 20 times or so.

Bernard J. said...

"..."pardoning the thugs responsible for the scandal definitely short-circuited our capacity to find out who did what AND the greased the wheels for future thuggish actions in the future.

Trump pardoning himself and his family would definitely not be the first time the power was used to protect the pardoner and his allies.

On both points I am in agreement with you. And they are not inconsequential points...