The Arpaio pardon and impeachment 

Here are three good pieces on Trump’s pardon of Arpaio, each reflecting the bottom line that Trump abused the power, and even if the pardon can legally/procedurally go into effect, It should also be grounds for impeachment: Frank Bowman in Slate, Josh Chafetz in the Washington Post, and Noah Feldman in Bloomberg.  I’m adding Krugman’s piece here, too:

“Let’s call things by their proper names here. Arpaio is, of course, a white supremacist. But he’s more than that. There’s a word for political regimes that round up members of minority groups and send them to concentration camps, while rejecting the rule of law: What Arpaio brought to Maricopa, and what the president of the United States has just endorsed, was fascism, American style… There’s also a word for people who, out of cowardice or self-interest, go along with such abuses: collaborators. How many such collaborators will there be? I’m afraid we’ll soon find out.”

[For what it’s worth, I’m not yet persuaded by Martin Redish’s take in the NY Times that the 14th Amendment’s due process clause restricts this particular pardon. I think the obstruction of justice statutes might apply instead, but probably only to a worse set of facts (such as Arpaio or his henchmen returning to commit the same crimes, and receiving a second pardon, or Trump’s pardoning collaborators in order to obstruct the Russia investigation). To the extent that Arpaio’s actions plus the pardon continue to impact civil rights, let me add that there can still be new injunctive relief against Arpaio, there can be federal and state prosecutions of Arpaio and his henchmen for all kinds of crimes. Federal pardons do not impact state prosecutions. Moreover, victims can bring torts suits in state and federal court (civil rights violations based on Section 1983 and constitutional torts violating 4th, 5th, 8th and 14th Amendments).

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

2 thoughts on “The Arpaio pardon and impeachment ”

    1. I don’t agree with Redish’s due process argument, at least not at this stage. And I think Bowman’s point about impeachment is very different from Redish’s stretch of the due process clause.

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