Op-Ed: Can Trump be impeached for pardoning Arpaio?

In a classic Washington news dump, the White House announced Friday night that President Trump had pardoned controversial ex-Sheriff Joe Arpaio, whose crusade against illegal immigration in Maricopa County, Ariz., led to racial profiling and a criminal contempt conviction. Since then, some pundits and scholars have argued that, with this decision, Trump crossed the line and upended the Constitution. Some have even suggested that he should be impeached.

Sorry, but it’s not going to happen. While highly inappropriate, Arpaio’s pardon is not all that different from other recent controversial clemency decisions, and, like them, falls well short of making the president impeachable. Here’s why.

The framers of our Constitution vested the ability to “grant Reprieves and Pardons for Offences against the United States” in the president as a check on the federal judiciary. They debated whether to force the president to share the clemency power with the Senate, whether the power should apply only “after conviction” of a crime, and whether there should be an exception made to exclude treason from eligibility for presidential mercy.

Ultimately, they decided that the president alone should be able to exercise a wide-ranging clemency power and then take responsibility for those decisions.

Clemency is a kingly power that allows the president to offer official forgiveness as an “act of grace.” The vast majority of pardons by recent presidents have gone to nonviolent offenders who have served their time. Presidents can also use clemency for the benefit of the “public welfare” — to defuse insurrections, as George Washington did in the Whiskey Rebellion, or to bring the country back together again after a trying time, as the Civil War amnesties did.

Not all pardons fit neatly into these categories, of course. Presidents have also granted clemency to murderers, terrorists and spies. They have pardoned for political gain, to get themselves out of trouble and to help out family members.

All of which is to say, presidents have a broad power to pardon. The only textual limits in the Constitution are that the crime must be a federal (not state-level) offense, and that the president may not act “in Cases of Impeachment.” For various reasons, that’s the way the framers wanted it. There is certainly nothing in the Constitution that excludes or makes distinctions based on whether the offender was a law enforcement officer or violated a court order, for example.

That Arpaio was in law enforcement is pretty much irrelevant, and is nothing new when it comes to clemency. For example, Ronald Reagan pardoned two FBI officials who allowed agents to conduct illegal searches in order to locate fugitives who belonged to the Weather Underground. Granted, the Arpaio pardon upended a judicial ruling, but that’s precisely what clemency decisions do.

Going forward, the White House would be well advised to consider how other politically charged clemency decisions have played out in the not-so-distant past. Gerald Ford made a controversial pardon early in his presidency when he granted one to his predecessor, Richard Nixon. The GOP suffered a bloodletting for Watergate in 1974, and Ford’s reputation took decades to recover.

More recently — and much less honorably than Ford — presidents of both parties have used pardons or commutations to assist their political allies (George H.W. Bush and Iran-Contra, George W. Bush and Scooter Libby) or their supporters (Clinton and Marc Rich). These acts are failures of judgment that stained the records of each of these presidents.

Jeffrey Crouch is an assistant professor of American politics at American University. He is the author of “The Presidential Pardon Power.” He is Editor-in-Chief of Congress & the Presidency.

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