It seems there is nothing our 45th president can do that will satisfy progressives one iota, and as another example a law professor argues that the chief exec’s constitutional power of the pardon … can lead to impeachment.
To be clear, University of Missouri-Columbia Professor Frank Bowman notes on his blog Impeachable Offenses that Mr. Trump “committed his first verifiable impeachable offense” (emphasis added) with his pardon of Arizona Sheriff Joe Arpaio.
Stay with him here. For, although “Article II Section 2 of the Constitution gives a president effectively unlimited to power to pardon anyone (possibly even including himself),” Bowman points to Northwestern Professor Martin Redish’s contention that this pardon should be invalid since it offends the Constitution’s 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.
Redish does admit his is a “novel theory” and Bowman adds that it “won’t fly.”
So what’s the deal?
The founders included in the constitution a congressional power to impeach presidents primarily to respond to misuse by the president of express or implied powers given him elsewhere in the document.
It is true that presidents and other officials can be impeached for conduct not involving the exercise of a specific official power if it intrudes somehow into the sphere of public duty. And impeachment can be proper in the case of a heinous private criminal offense which so far undercuts the moral authority and personal credibility of the offender that he can no longer effectively perform his office.
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.
Bowman contends the Arpaio pardon “plainly falls” in the realm of impeachable offenses because
— This pardon is a “direct assault on constitutional rights” and the authority of the courts.
— The pardon “threatens constitutional civil liberties generally” and is “a direct attack on the constitutional powers of the judiciary as a coordinate branch of government.”
— The pardon serves to undercut the very rule of law itself.
Lastly (but listed first originally by the professor), the Arpaio pardon is impeachable “precisely because it involves the exercise of a constitutionally created presidential power.”
Bowman concedes that “every pardon undercuts a prior judicial decision and vitiates a court’s judgment,” but context is the question. He seemingly ventures into critical race theory territory by noting the Arpaio pardon “devalue[s] constitutional and statutory protections of a vulnerable minority.”
He concludes by noting the chief exec’s pardon power “does not deprive Congress of the power to conclude” such an exercise is so against the Constitution that it could be impeachable.
Possibly the best comment in response to the professor’s post is “This type of argument is mostly an academic exercise. Perhaps for that purpose alone, it may have some value. But it twists the senses out of presidential authority like water from my dish rag.”