Harvard Law Professor: Arpaio Pardon Is Impeachable Offense (TWEETS)



There is little doubt that Donald Trump’s pardon of Joe Arpaio was an outrage. After all, in the absence of something we haven’t heard or seen, there is virtually no defensible reason for Trump to effectively circumvent the sentencing and appeals process and give Arpaio a “get out of jail free” card. But less than 48 hours before Trump pulled the trigger, a professor at Harvard Law School delivered a sobering warning to Trump. He believes that a pardon of Arpaio wouldn’t just be an outrage, but grounds for impeachment.

Noah Feldman, the Felix Frankfurter Professor at Harvard Law, writes that a presidential pardon of Arpaio “would not be an ordinary exercise” of the presidential right of pardon, partly due to the nature of Arpaio’s conduct. For those who don’t know, Arpaio was convicted of criminal contempt of court last month for openly flouting federal judge G. Murray Snow’s order to stop running sweeps aimed at profiling Latinos and detaining those who were found to be undocumented.

Even though this campaign was found to be blatantly unconstitutional, Arpaio openly declared he would keep going. For this, Snow held Arpaio in civil contempt in July 2016. Almost a year later, another federal judge, Susan Bolton, convicted Arpaio of criminal contempt.

As Feldman puts it, Arpaio was convicted of “willful defiance of a federal judge’s lawful order to enforce the Constitution.” This, Feldman believes, is what makes a pardon of Arpaio impeachable. He believes that it represents a new and “more radical step” in Trump’s outright war on the judiciary.


More fundamentally, Feldman also believes pardoning Arpaio would amount to an attack on the Constitution.

“Arpaio didn’t just violate a law passed by Congress. His actions defied the Constitution itself, the bedrock of the entire system of government. For Trump to say that this violation is excusable would threaten the very structure on which is right to pardon is based.”

Feldman also argues that a pardon of Arpaio would amount to an attack on the rule of law, since the courts are essentially the only check on the power of law enforcement.

“When a sheriff ignores the courts, he becomes a law unto himself. The courts’ only available recourse is to sanction the sheriff. If the president blocks the courts from making the sheriff follow the law, then the president is breaking the basic structure of the legal order.”

While Feldman concedes that “legally speaking,” Trump can issue the pardon, it would still be a “wrongful act,” as it would cause “a crisis in the enforcement of the rule of law.” To his mind, there is only one solution.

“The Constitution isn’t perfect. It offers only one remedy for a president who abuses the pardon power to break the system itself. That remedy is impeachment.”

Feldman’s colleague at Harvard Law, Laurence Tribe, is of the same mind. Hours after the pardon came down, Tribe all but begged the Senate to grow a set and impeach Trump.

Brian Kalt, a law professor at Michigan State, reminded Feldman that there is precedent for a president to issue pardons for criminal contempt–but conceded that pardoning Arpaio raises huge red flags.

Kalt was referring to Ex parte Grossman, a 1925 case in which the Supreme Court upheld President Calvin Coolidge’s decision to pardon a man who had been convicted of contempt for continuing to sell liquor in violation of Prohibition.

However, Coolidge at least waited to issue a pardon until after the sentence came down. Trump didn’t even do that. And unless he and/or his legal team is willing to tell the nation what justified circumventing the sentencing and appeals process, this pardon is an abuse of power.


It is yet more reason why this president must resign, and now. And if he isn’t willing to do so, Congress needs to put the blinders aside and impeach him. Otherwise, the hand-wringing two decades ago about Bill Clinton endangering the rule of law will mean absolutely nothing.

(featured image courtesy Michael Vadon, available under a Creative Commons BY-SA license)

Darrell is a 30-something graduate of the University of North Carolina who considers himself a journalist of the old school. An attempt to turn him into a member of the religious right in college only succeeded in turning him into the religious right's worst nightmare--a charismatic Christian who is an unapologetic liberal. His desire to stand up for those who have been scared into silence only increased when he survived an abusive three-year marriage. You may know him on Daily Kos as Christian Dem in NC. Follow him on Twitter @DarrellLucus or connect with him on Facebook. Click here to buy Darrell a Mello Yello.