Democrats, and some Republicans, have been looking for ways to remove President Trump from office since he took the oath. But the Constitution stipulates that unless the president has violated his oath to defend the Constitution, or committed a high crime or misdemeanor, a legal means to impeach Trump does not exist. The recent presidential pardon of former Sheriff Joe Arpaio of Maricopa County in Arizona however does raise questions of a Constitutional crisis according to the National Post.
Former Sheriff Joe Arpaio’s stamp down on immigration, specifically the Latino population of Phoenix, Arizona, is well known. So well known that his methods of detaining Latinos, based on sheer appearance alone, was thumped by the federal courts as unconstitutional. Joe Arpaio continued his tactics, and was convicted of contempt of court and faced six months in jail.
He was, this week, pardoned by President Trump for that crime.
Arpaio has long held that his position of going after Latinos based on appearance alone was to enforce immigration. However the federal courts ruled otherwise, sending down a cutting rebuke of Joe Arpaio’s methods, deeming them racial profiling that was unconstitutional and needed to stop.
When Joe Arpaio refused to comply with the federal courts, he was convicted of the crime of contempt of court and facing six months in jail.
This, to the many Latinos that suffered by his methodology seemed a paltry sentence for his crime. Even so, the conviction served to send the message to Americans that America’s system of checks and balances against abuse of power in office was alive and well.
And then, Arpaio’s crime and conviction was pardoned by President Trump. When a presidential pardon occurs, there is no allocation of guilt to the defendant. It’s like the crime just disappears as if it never happened.
The defendant, Joe Arpaio, is no longer a defendant in the criminal justice system. To many, his egregious crimes just disappearing is a travesty of this system of checks and balances that Americans hold dear. Some also want to impeach Trump on this basis, on the grounds that he has violated the Fourteenth Amendment of the Constitution.
The Fourteenth Amendment to the Constitution was adopted in 1868 in response to slavery following the Civil War reports Cornell Law. Section one states the following.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States and of the state wherein they reside….nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person with its jurisdiction the equal protection of laws.”
Joe Arpaio has been accused, and convicted, of violating the Constitution. It raises the question that if President Trump pardoned him for violating the Constitution, is the president also violating the Constitution through this process?
If he is, he is also violating his oath of office to uphold, defend, and protect the Constitution from enemies both foreign and domestic.
When a president seeks to pardon an individual for a crime, the normal protocol in America, the land of checks and balances, is to seek and make public a recommendation of the Department of Justice. Trump did not do this.
The National Post noted that his failure to do so raises a “loud alarm.” This alone would not be grounds to impeach Trump. However if Congress were to determine Trump’s actions were unconstitutional, that would be grounds.
Not only did Trump not seek recommendations from the Department of Justice, following the Arpaio pardon last week, the Washington Post broke the story that early in Arpaio’s case, Trump asked Attorney General Jeff Sessions to “drop the criminal case” against Arpaio. This was before the system of checks and balances was even in play, and before Arpaio’s due process had occurred.
Jeff Sessions said no, that would be “inappropriate.”
The Department of Justice has since declined to comment on the Arpaio pardon.
With the decline of Attorney General Jeff Sessions to drop the case, Trump reportedly decided to wait to see how the trial played out before granting clemency. It played out that Arpaio was convicted.
Then, Trump intervened, which means he interrupted the legal system of checks and balances. Arpaio would have been given an opportunity to appeal his conviction, like every other defendant and convicted criminal in the United States of America. Trump interrupted that process.
The Heritage Guide to the Constitution, in an essay on the pardon power of the president, notes how historically the pardon power has been used for the greater good of America, and that’s why the pardon power was established in the Constitution. In 1788, Alexander Hamilton in Federalist paper No., 74 argued that “public welfare” was the predominating cause for using pardon power, and that it was the “benign prerogative” of the office using it to use a “sense of responsibility” that was scrupulous and cautious, along with “prudence and good sense and circumspection.”
Many today argue that Trump’s pardon of Arpaio was not for the public good, but for Trump’s own political agenda.
Trump is already in a little bit of hot water when it comes to the topic of obstruction of justice. Special prosecutor Robert Mueller is investigating whether or not Trump asked former FBI Director James Comey to drop the Michael Flynn investigation. James Comey was fired shortly after he reportedly hinted to Trump that he would not in fact drop the investigation.
The Arpaio pardon raises more questions of the constitutional crisis of a president continuing to obstruct justice by pardoning a crime that was deemed unconstitutional by the federal courts.
The National Post noted the following on the topic.
“An act of this kind cannot fail to affect Mueller and his team as they investigate obstruction of justice and evaluate evidence bearing on the president’s motives and respect for the law.”
The National Post also notes that although Congress may not impeach Trump on the Arpaio pardon alone, it would be one note of evidence to add to the file when building an impeachment case against the president. The National Post noted that, “an Arpaio pardon in the background will be highly damaging to the president’s position…immeasurably strengthen the hand of those arguing Donald Trump does not have requisite respect for the rule of law.”
The Heritage Guide to the Constitution writes that a pardon is valid because it’s purposes are “primarily public.” It was used by President George Washington when he granted clemency to those participating in the Whiskey Rebellion. It was also used by President Abraham Lincoln to issue amnesty to Confederates in the Civil War. Both President Ford and President Carter issued pardons to Vietnam War draft-evaders.
Pardons have been legally contested in the United States, but the federal courts and even the Supreme Court has not set a precedent to limit the president’s pardon power. Even so, in 1974, Chief Justice Warren E. Burger wrote in his opinion on Schick V. Reed that pardons should only be used when they themselves do not “offend the Constitution.”
Many are saying not only were Joe Arpaio’s crimes unconstitutional, but pardoning them is as well. The use of presidential pardons is historically to be used for the greater good of Americans. The Washington Post reported that the age of Arpaio “weighed on Trump” and he “could not stomach” seeing an 85-year-old man in jail.
But there are many 85-year-olds in prison in America every day. An analysis conducted on Arpaio’s detention history may even show that Arpaio does not have a problem putting elderly people in jail. Neither the Constitution nor the Criminal Code put an age cap on defendants in prison, nor do they pardon defendants convicted of crimes based on age factors.
Conversely, people die in jail all the time while serving life sentences. Further, Arpaio was only facing a six-month-sentence. The notion of Arpaio “wasting away in a jail cell” is incongruent with the facts of his case. The Washington Post reports that Robert Bauer, former White House Counsel had the following legal analysis of the recent chain of events.
“He just wanted to kill the prosecution off. He couldn’t do it one way, so he ended up doing it the other way. This is just another vivid demonstration of how far removed from an appropriate exercise of the pardon power this was.”
Another question raised during the Arpaio pardon, was the concern by many Americans that Trump would hope to use the pardon power on himself, or members of his family or transition team during the course of the Robert Mueller investigation into Trump Russia scandal. The Heritage Foundation notes that this was attempted by President Nixon, whose lawyers failed to successfully argue that a president could pardon himself.
Thus, a self-pardon is constitutionally impermissible, especially during an impeachment process already underway. But this would not preclude Trump from pardoning others.
At the end of the day the United States is and always has been a nation of supreme laws, a system of checks and balances, and a nation where laws rule over men, and men do not rule over laws. The president, and law enforcement, are not above the law. Law enforcement officers of all ages go to jail every day on convictions of abuse of power.
If Congress finds these recent acts of the president unconstitutional, they can impeach Trump. But whether or not Congress will even explore this issue remains to be seen.
[Feature Image by Mary Altaffer/AP Images]