President Trump's decision to pardon Sheriff Joe Arpaio — the Arizona man convicted of ignoring a court order to stop racially profiling Latinos — was condemned on both sides of the political aisle as racism, cronyism and subverting the judicial process. But some law professors say it rises to the level of an impeachable offense.
The Constitution has always given presidents wide-ranging pardon power. But experts say the Arpaio case is a disturbing precedent, because it could undermine the courts' ability to prevent government officials from violating citizens' rights.
Martin Redish, a professor of constitutional law at Northwestern University, says the issue is that court orders, or injunctions, are the most effective way to prevent government officials from infringing on an individual's rights, because they carry the threat of criminal prosecution. But if government officials believe they'll be pardoned by the president, they'll feel free to ignore those orders — and give the president unfettered power over individuals in the process.
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“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," says Redish. "Indeed, the president could even secretly promise a pardon to agents if they undertake illegal activity he desires.
“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.”
So, will Trump be impeached for this?
Frank Bowman, a law professor at the University of Missouri-Columbia, says that Trump, having done this, has abused presidential power in a way that warrants impeachment. “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," he wrote on Slate. “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 offences.”
Bowman said Trump's pardoning of Arpaio was a “direct assault on core constitutional rights, statutory civil rights laws of the United States, and the authority of courts to enforce those laws.
“It is a direct attack on the constitutional powers of the judiciary as a coordinate branch of government…[and] threatens to undercut one of the indispensable, foundational norms of American constitutional order: the rule of law,” he added.
Trump impeachment odds
Although whispers of impeachment are growing, nothing is likely to happen in the near term, as the Republicans control both houses of Congress and have shown few signs of wanting to break with the 78% of Republican voters who still approve of Trump's job performance, per the latest Gallup poll.