Law & the Courts

Arpaio Pardon Shows the Futility of Mueller’s Obstruction Investigation

Sheriff Arpaio at a Trump campaign rally in Prescott Valley, Ariz., October 2016. (Photo: Gage Skidmore)
The question is impeachment, not indictment.

Where are the calls for obstruction charges?

On the matter of President Donald Trump’s pardon of Sheriff Joseph Arpaio, just about any bad thing that could be said has been said. This is the second of a two-part series on the subject, and in the first I described the pardon as “unmerited, unnecessary, and impulsive.” My words were pretty tame compared with those of other disapproving commentators.

But one word you didn’t hear much was “obstruction.”

The word “impeachment” has been invoked here and there. Such talk is fairly muted in Democratic circles, though, at least where the Arpaio pardon is concerned. This apparent smidgeon of self-awareness is welcome. In the context of impeachment, Trump’s clemency grant cannot be discussed without inviting comparisons to disgraceful pardons and commutations issued by Presidents Obama and Clinton.

There is a good reason for that, which we’ll get to.

Notice, though, that despite broad disapproval of the Arpaio pardon, cutting across partisan and ideological lines, few critics have panned it as an instance — or yet another instance — of Trump’s potentially criminal obstruction of legal processes.

That seems strange. After all, there have been strident calls for the investigation and possible indictment of Trump over his purported obstruction of the Flynn probe — i.e., the FBI’s investigation of retired General Michael Flynn, fleetingly the president’s national-security adviser. Those strident calls have not been for naught: They led to the appointment of Special Counsel Robert Mueller. Obstruction is said to be a critical component of his ongoing Trump-Russia investigation.

The specter of obstruction was first raised by James Comey, the FBI director eventually fired by Trump — a firing that Trump detractors promptly added to the putative obstruction case. In fact, when it came to light that Comey steered to the New York Times an internal FBI memo he’d written about Trump’s pressuring him over Flynn, the former director admitted he was hoping to trigger the appointment of a special counsel to investigate the president.

Consider this: A pardon is the ultimate obstruction of a criminal investigation. It is checkmate. The federal prosecutors and investigating agents in the Arpaio case could complain as vigorously as former director Comey has about the president’s trampling on the independence of law enforcement. But it would change nothing. A presidential pardon stamps their file case closed.

The Flynn case was never closed. Trump did not pardon Flynn, though he could have (and still could). By any fair accounting, the president’s expression of “hope” that Comey would drop the case constitutes heavy-duty pressure from the boss. But as we’ve repeatedly pointed out, pressure is not obstruction. The investigation was not shut down. It continues and, according to some reports, portends real jeopardy for Flynn.

A pardon is the ultimate obstruction of a criminal investigation.

Consider, also, the circumstances surrounding the Arpaio pardon. It has been reported by the Washington Post that, weeks before the former top lawman in Maricopa County was put on trial, President Trump indicated to Attorney General Jeff Sessions that he would like to see the case dropped. Sessions is said to have told the president that doing so would be inappropriate. Trump thus agreed to let the prosecution go forward . . . but with the proviso that he would issue a pardon if Arpaio were convicted — a foolish calculation on Trump’s part (we’ll get to that, too).

To repeat: The pardon completely aborts the prosecution of Arpaio. Yet it is not the pardon that has prompted shrieking about obstruction; it is Trump’s consultation with Sessions. Of course, far from aborting the case, the upshot of that consultation — breathlessly decried as political interference in law enforcement — is that Arpaio was fully investigated, tried, and convicted.

Tell me the world is not upside-down: We are to believe that a president’s completely shutting down an investigation or judicial proceeding is permissible; but a president’s merely weighing in on, but not halting, an investigation or judicial proceeding is felony obstruction.

If you think that makes no sense, you are afflicted with good mental health. Of course it makes no sense. The question is why it makes no sense. The answer is bad news for Trump haters.

The problem, the legal irrationality, owes not to the pardon power. It is a stubborn fact that pardons are judicially unreviewable — to grant clemency is a constitutional power of the executive, and thus it would be pointless to consider whether a pardon is grist for an obstruction investigation and prosecution.

No, the confusion here is the refusal of commentators to grasp that the authority to pardon is just one aspect of the executive’s broad police powers. These powers include prosecutorial discretion: decisions about whether to investigate, to bring charges, to shut down or go forward with an investigation, and to prosecute or discontinue a prosecution.

As we have repeatedly observed (see, e.g., here, here, and here), it makes no more sense to talk about an obstruction indictment of the president over his urging the FBI director or the attorney general to shut down an investigation than it does to talk about such an indictment over a presidential pardon. These are just different clemency aspects of the same set of powers. As a matter of constitutional law, a court has no more power to inquire into the executive’s dropping of an investigation or decision not to file charges than to inquire into the issuance of a pardon or a commutation that slashes a prison sentence.

Nor do the president’s subordinates have the power to countermand him. The “independence of law enforcement” is an aspiration — and a worthy one in most instances. But it is not even a fact, much less a legal rule. Notwithstanding the grandiloquence of high-ranking law-enforcement officials about their vaunted independence, they do not constitute a separate branch of government.

Under the Constitution, only one official in the executive branch has power — the president.

Not only do they work for the chief executive; they do not even have their own power. Under the Constitution, only one official in the executive branch has power — the president. The first sentence of Article II is crystal clear: “The executive Power shall be vested in a President of the United States” (emphasis added). As Justice Antonin Scalia emphasized in a legendary 1988 dissent (in Morrison v. Olson), “This does not mean some of the executive power, but all of the executive power.” Everyone else in the executive branch is a delegate, permitted to exercise the president’s power at the president’s pleasure. These subordinates may (and should) try to persuade the president against foolish or odious courses of action. They may (and should) resign if the president orders a course of action they cannot in good conscience carry out. But it is not prosecutable obstruction for the president to direct them to do things they believe undermine their law-enforcement mission. He gets to do that.

So is that the end of the matter? No. The Constitution gives no government official uncheckable power. If the president abuses his law-enforcement and clemency powers, if he wields them corruptly, Congress is authorized to impeach him. Like the courts, Congress has power neither to rescind a pardon once granted, nor to direct the executive branch to pursue a case the president wants terminated. But unlike the courts, Congress has the power to impeach and remove the president — thereby divesting him of the capacity to abuse the awesome powers of the executive.

Impeachment is the only context in which it is sensible to discuss President Trump’s warping of law-enforcement processes on behalf of political allies such as Arpaio and Flynn. A president may not be indicted for exercising authority he unquestionably has, no matter how disagreeable or even repugnant we may find the exercise. But if it is a corrupt exercise, he may be impeached over it.

Still, to repeat a point made many times in these pages, and in Faithless Execution, my book on the subject (clearly more timely now than when it was published!), impeachment is a political remedy, not a legal one.

It takes only a bare majority of the House of Representatives to approve articles of impeachment. If the Democrats were to retake the lower chamber in 2018, bank on it: Trump would be impeached. But he would not be removed. A supermajority two-thirds vote of the Senate is required to strip a president of his office. That means no president can be defrocked absent misconduct so egregious that a consensus to condemn it transcends our deep partisan and ideological divides.

The Arpaio pardon does not approach misconduct of that dimension.

Serious claims about racism and civil-rights abuses have been levied against the former sheriff, particularly by the Obama Justice Department. Politically, Trump will now have to bear the unknown weight of these claims. Legally, however, Arpaio was only ever charged with misdemeanor violation of a court order. No matter what one thinks of Arpaio — I am not a fan — this was not the crime of the century.

As I detailed in the first column in this series, Trump handled this very poorly. He should not have pardoned Arpaio at all, but if he was going to do it, he should have done it before the trial. As noted above, Attorney General Sessions advised him that doing so would be “inappropriate” (the Washington Post’s word, based on three unnamed sources). But inappropriate is not the same thing as illegal. Plus, if it is inappropriate to grant a pardon before the trial, it is also inappropriate to grant it before the sentencing and the appeals. Politically speaking, Trump should have either stopped the process cold before the trial or let it play out to its conclusion a year or two from now — which, as I have argued, might have obviated any occasion for a pardon.

President George H. W. Bush controversially pardoned former defense secretary Caspar Weinberger before the latter could be tried in the Iran-Contra affair. Inappropriate? Maybe . . . but if a president waits until after a political ally is convicted to issue the pardon, he is effectively endorsing conduct conclusively found to be lawless. To the contrary, an early pardon that prevents a trial from happening can be spun as short-circuiting a political witch hunt.

This comparison with Bush’s Weinberger pardon brings us to the most important point. We don’t assess pardons in a vacuum; we compare them with other presidential pardons. This, as we noted above, explains why Democrats are not hog-wild to talk about the Arpaio pardon as impeachment fodder — even at a time when they seem to think everything is impeachment fodder.

President Trump is not going to be impeached and removed from office over the Arpaio pardon.

Unsavory as they may find it, the Arpaio pardon is not in the same league as President Clinton’s pardon of fugitive fraudster Marc Rich in exchange for political donations. It does not compare to Clinton’s commutations for the FALN and Weathermen terrorists. Nor is it as egregious as Obama’s clemency for two hard-Left darlings, FALN terrorist Oscar Lopez Rivera and the traitorous Chelsea Manning. Moreover, in granting an astonishing 1,715 commutations (compare George W. Bush’s 189, Clinton’s 396, Reagan’s 393), Obama abused the pardon power in order to undermine Congress’s sentencing laws for serious felony offenders — much as he abused his power of prosecutorial discretion in order to undermine Congress’s immigration laws. Trump’s undermining the authority of the judiciary in a single misdemeanor case — one in which a judge heavy-handedly denied Arpaio a jury trial and then unilaterally convicted him — may be of greater moment to the media, but it’s not to much of the country.

President Trump is not going to be impeached and removed from office over the Arpaio pardon — or, for that matter, for discouraging the Flynn investigation, for weighing in on the Arpaio indictment, or for firing Jim Comey. Unless damning evidence of Trump-camp complicity in Russian espionage is uncovered, Trump’s impeachment and removal from office is just a Democratic pipe dream. But at least it is a pipe dream that makes constitutional sense. That is more than can be said for Special Counsel Mueller’s obstruction investigation.

    READ MORE:

    Part One of Andrew C. McCarthy’s Arpaio Pardon Response

    Why the Arpaio Pardon Won’t Destroy Democracy

    The Joe Arpaio Pardon Was A Bad Move

— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.

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