Anything is impeachable if the House of Representatives thinks it is; they don’t have to match any hypothetical articles of impeachment up against any criminal code. If the President is seen to be abusing the pardon power or the operation of the Justice Department, that’s probably about as good a reason for impeachment as any.
The converse, of course, is that any conduct is not impeachable if the House of Representatives doesn’t think that it is. As matters currently stand, I don’t believe there’s anything that Trump has done that would cause the House to impeach him right now.
Let’s say Arpaio is somehow (can’t imagine how, but let’s not worry about that) back in court and pleads the 5th. The Judged says: Off to jail with you!! The court officer takes Arpaio to jail and a few minutes later Trump issues a pardon.
With any luck, someone will follow Arpiao’s lead and ignore the pardon. Old Joe will be “lost” somewhere in the prison and not “found” for several weeks.
Slightly more plausibly, let’s say Manafort is testifying before a grand jury and refuses to speak. He’s granted immunity, so he can’t plead the fifth. He still refuses to talk, so he’s declared in contempt and sent to jail. Can Trump pardon him there and order is release?
Something I just thought of: in the above scenarios, assuming you can pardon someone out of refusing to testify without legal consequence, is there anything preventing the judge or prosecutor from issuing another subpoena for the pardoned person? You can’t pardon a subpoena, after all. Could the court just keeping the loop going until it becomes politcally unfeasible for Trump to continue (or, more likely, it frustrates him into doing something stupid, like trying to have the judge arrested)?
I’ve always thought that in cases of direct contempt, there is literally no one who can countermand the court’s order that the contemnor be placed in custody (or fined).
Unless I am mistaken, and a higher court has the authority to find that the lower court judge exceeded his authority and orders that judge to rescind the order pending the finding of a valid cause for the declaration of contempt.
Maybe it has to do with it being an order of the court and not “a crime”, as specified by the constitution. Suppose the court orders someone to be silent during the proceedings because they are being disruptive. The president can’t “pardon” that person and allow him to continue to be disruptive. Right?
In my view, it’s legal. And since anything Congress wants to be impeachable is. . . then yes, it’s impeachable. But no, from a practical standpoint, not.
I’d say it’s evident from the way exiting rules work. Even the President’s supposed pardon cannot insulate the witness from the requirement to testify: remember that a pardon cannot excuse future offenses. And remember that the judge doesn’t send the recalcitrant witness to jail to punish him, but to compel his testimony. He has the keys to his own cell, as the saying goes.
So even if the President purported to “pardon,” the extant “offense,” that merely places the witness back in the position of refusing to testify and subject to the identical sanction by the court.
Yes, a higher court can order the lower court to release the reluctant witness by finding that the lower court abused its discretion in ruling that the refusal was contemptuous.
Imagine, for example, a judge who orders a Catholic priest to testify to matters revealed during confession. The priest refuses and the court holds him in contempt and jails him. Doesn’t it make sense that there’d be some effective review by a higher court?
“Joe Arpaio saga isn’t over: Judge to decide if his conviction stands”
It sounds like he still has to go to court to get the conviction thrown out. However, I thought that when a pardon was issued it automatically cleared away the conviction. So can someone with a bit of legal knowledge explain what’s going on?
As I understand it, the conviction is moot either way, but it can still be a sort of “conviction of record”. In other words “he was convicted but pardoned” as opposed to “the conviction was thrown out.”
This sounds like a distinction without a difference, but it could be important in the ACLU’s civil suit.
At least that’s my non-lawyer understanding of it. Hopefully one of our resident lawyers will comment on this.
Presidential pardons don’t expunge the criminal record. Arpaio will still have to answer “yes” on any form that asks if he has a criminal record. Arpaio is asking a judge to vacate the whole thing so that he can get out of having a record. He’s really pushing the line that just because he’s been pardoned, it doesn’t mean that he admits he’s guilty - which is not how presidential pardons have traditionally worked.
The Judge is perfectly in her power (and in line with previous pardons) if she chooses to say, “nope - your criminal conviction is a fact that happened and the pardon doesn’t wipe that out.” But Arpaio insists that if she denies him, he’ll take it to the Supremes.
See here -
