Another Nail in Trump's Impeachment Coffin?

What more can Trump do to demean the Rule of Law in America?

Trump did not consult Sessions or the Department of Justice before issuing the Arpaio pardon. Instead, Trump had decided to pardon Arpaio if convicted well before the errant sheriff stood trial.

As Joseph Arpaio’s federal case headed toward trial this past spring, President Trump wanted to act to help the former Arizona county sheriff who had become a campaign-trail companion and a partner in their crusade against illegal immigration.

The president asked Attorney General Jeff Sessions whether it would be possible for the government to drop the criminal case against Arpaio, but was advised that would be inappropriate, according to three people with knowledge of the conversation.

Trump’s Friday-evening decision to issue his first pardon for Arpaio was the culmination of a five-year political friendship with roots in the “birther” movement to undermine President Barack Obama. In an extraordinary exercise of presidential power, Trump bypassed the traditional review process to ensure that Arpaio, who was convicted of contempt of court, would face no time in prison.

Trump’s pardon, issued without consulting the Justice Department, raised a storm of protest over the weekend, including from some fellow Republicans, and threatens to become a stain on the president’s legacy. His effort to see if the case could be dropped showed a troubling disregard for the traditional wall between the White House and the Justice Department, and taken together with similar actions could undermine respect for the rule of law, experts said.

Former White House counsel to president Obama and New York University law prof, Bob Bauer, anticipated the pardon in an op-ed in Foreign Policy. Bauer contends what Trump has done has the makings of a constitutional crisis.

While [Trump] has rejoiced over the “complete” scope of the pardon power, he might not know or fully appreciate the risks of his enthusiasm. One hopes that the White House Counsel, among others, sets him straight.

Any president considering a pardon in the normal course would solicit and make publicly available the recommendation of the Department of Justice. The Department, however — and here we are speaking specifically of Trump’s Department — secured the very conviction for criminal contempt that would be the subject of the pardon. Now, a president can ignore the departmental recommendation: The power is his, of course, and not the Attorney General’s. But presidents are sensitive to the Department’s recommendations, and for good reason. The pardon power sits uneasily with the belief that ours is “a government of laws, not of men,” and the DOJ’s participation is one check on the abuse of this extraordinary authority. In answering the call for public accountability President Trump would have every incentive to involve and obtain the support of the Department. His failure to do so, or his proceeding over the Department’s objections, would ring a loud alarm.

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The White House Counsel preparing the pardon papers would also need to labor hard, and would inevitably fail, to bring this potential grant within the accepted norms for the grant of pardons. Among the more conventional considerations: the case is fresh, and with Arpaio’s lawyers readying the appeal of a decision issued in July, the president would be intervening in the middle of a legal proceeding yet to run its course. If Trump just jumps in and by executive fiat ends the matter, a pardon will have every appearance of being direct interference in the administration of justice. In his capacity as the Chief Executive, the President has already had exceptional difficulty grasping and respecting the independent and impartial operation of federal law enforcement. With this act, Mr. Trump dramatically escalates the assault on these limits.

Then there is the large and more basic question of the purpose behind a grant. It does make a difference why a president grants a pardon. It is an act for which he or she is accountable under the Constitution: As Justice Holmes stated almost a century ago in Biddle v. Perovich, the pardon power is “part of the constitutional scheme,” to be exercised in the advancement of the “public welfare. Or as Alexander Hamilton argued it in Federalist No, 74, it is a “benign prerogative” in the interests of the “tranquility of the commonwealth.” Like all of a president’s actions, its use is subject to the overall commitments entailed in his oath of office. Hamilton assured his Federalist readers that the individual occupying the Office of the President could be trusted to act on this extraordinary authority with a “sense of responsibility” marked by “scrupulousness and caution,” “prudence and good sense,” and “circumspection.”

Another nail in Trump's "Impeachment Coffin."

And while the president may well get away with the specific act of pardoning Arpaio, this action will not be without effect on future calls for impeachment. Unlike a pardon of himself, family members, or aides in the Russia matter, pardoning Arpaio would probably not result in the immediate demand for an impeachment inquiry. If, however, impeachment pressure increases, or a formal impeachment inquiry is launched on the basis of Russian “collusion,” obstruction, or on other grounds, an Arpaio pardon in the background will be highly damaging to the President’s position. It will immeasurably strengthen the hand of those arguing that Donald Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to be entrusted with the presidency.

Update:

Joe Farquharson sent this link so you can refresh your memory about Joe Arpaio. Sheriff Joe wasn't just some desert racist. In this and so much more this guy really is a poster boy for the alt.right and white supremacists.  And Trump is specifically playing to this crowd.