Trump’s Pardon of Joe Arpaio Is an Impeachable Offense

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During the 2016 campaign and in the first eight months of his presidency, Donald Trump has done many things that, once fully investigated, may prove to be impeachable offenses. We don’t yet know all the facts, so final judgment on most of Trump’s actions will have to wait.

However, by pardoning former Arizona Sheriff Joe Arpaio on Friday, Trump committed his first verifiable impeachable offense. To some readers, this may seem like frantic hyperbole. After all, Article II Section 2 of the Constitution gives a president effectively unlimited to power to pardon anyone (possibly even including himself) for any federal crime except impeachable offenses.

But professor Martin Redish argues in the New York Times that this particular pardon ought to be deemed constitutionally invalid. He contends that it offends the Due Process Clause because the only effective redress for those whose rights were violated by then–Sheriff Arpaio when he defied the court’s injunction is a contempt sanction, and voiding that sanction with a pardon both neuters the judicial power to enforce constitutional rights and deprives Arpaio’s victims of relief. Even professor Redish admits that this is a novel theory, and with respect, it simply won’t fly. Any time a president pardons someone for a criminal offense, he voids the considered judgment of some court and deprives the defendant’s victim of redress. The Constitution provides no carve-outs for cases where the underlying crime is a deprivation of civil liberties or a contemptuous defiance of a judicial order.

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But, 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.

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The pardon of Arpaio plainly falls within this core conception of properly impeachable offenses.

It is an impeachable offense precisely because it involves the exercise of a constitutionally created presidential power.

The use of the pardon power in this case is 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 therefore threatens constitutional civil liberties generally, as well as the viability of congressionally authorized statutory law, and it is a direct attack on the constitutional powers of the judiciary as a coordinate branch of government.

Accordingly, this pardon threatens to undercut one of the indispensable, foundational norms of American constitutional order: the rule of law.

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