Like Donald Trump, Joe Arpaio made his name in politics through aggressive race baiting, repeatedly winning election as the sheriff of Maricopa County, home to Phoenix, by that means. Arpaio’s political strategy involved systematically going after the city’s Latino residents, using Latino appearance as the predominant reason for stopping and detaining people until they could prove their right to be in the United States.
Arpaio claimed his goal was to enforce immigration laws. But the pervasive targeting of folks based on their “Mexican” appearance made it clear that his deeper goal was to publicly stigmatize Latinos, citizens or otherwise, as perpetual foreigners in Arizona. In effect, he used racial harassment to grandstand politically.
In 2011, a federal court issued a stinging rebuke of Arpaio, making clear that the Constitution prohibits going after Latinos based on a presumption that we are in the country illegally. This sort of racial profiling, the court warned, was unconstitutional and had to stop.
Arpaio refused, and indeed made a point of flaunting his disdain. He ordered his officers to continue detaining and harassing people principally on the basis of Latino appearance.
Finally, this July, the federal court responded again and held Arpaio in criminal contempt for his refusal to obey the law. Compared with the damage he had done to thousands of people over his 25 years in office, Arpaio faced a slap on the wrist—a mere six months in jail, at most. Nevertheless, his conviction sent a powerful message about the law’s duty and power to protect people from abusive government officials.
Then Trump pardoned Arpaio, siding with someone guilty of violating the 14th Amendment’s bedrock command of racial equality and of mocking a federal court’s order that he desist.
There’s some discussion, for instance in a recent op-ed in The New York Times, of the possibility that Trump’s pardon could be rejected by the courts. The logic is that in using his pardon to dismiss a conviction for violating a court order, Trump has effectively gutted the capacity of the courts to serve as a “check and balance” against executive power. He has done that. But it’s doubtful the courts will limit the president’s ability to grant pardons on that basis. After all, the pardon power by its very nature hamstrings court power.
There are a number of points in constitutional law in which the judicial branch confronts an inevitable truth: Democracy does not depend on courts or laws themselves, but on respect for the rule of law. When that respect is lacking among other branches of government, the courts can do little on their own to save democracy.
At these points, the courts often defer—to the abuser, in the short run, but ultimately to us, the people. At the end of the day, it is the public that must decide what is acceptable—and what trammels democracy. The president is answerable, a court might say, “in his political capacity.”
One way the president can be made answerable is through electoral process. Another is through impeachment by the people’s representatives in the House.
In pardoning an official who spat upon the 14th Amendment right to racial equality and who treated the federal courts contemptuously, Trump abused his presidential powers. He enabled a racist to trash our country’s core values and subvert the rule of law and face no consequences for these actions.
With courts powerless to stop this double assault on democracy, Trump must be held to account politically. This is precisely the situation for which impeachment was designed. The Constitution speaks of impeachment for “high crimes and misdemeanors.” This term refers not to some narrow set of enumerated crimes but broadly to abuses of public power that threaten the democratic order.
Other grounds for impeaching Trump have been advanced and, given his temperament as well as on-going investigations, others will surely emerge. Likewise, with respect to his aligning himself with racists, the bill of particulars against Trump is long and growing, from his birther lies to his coddling of the Charlottesville white supremacists. Finally, this is unlikely to be Trump’s last abuse of pardon power. Pardons for family members, and even for himself, may come all too soon.
As a technical matter, these swirling and deepening transgressions are independent of Trump’s pardon of Arpaio, which could stand on its own as a basis for impeachment. But the case for impeachment should not be read narrowly. It is, at root, a political judgment. At its most mystical—in the aspirational sense of the word—impeachment is the people’s power. This power should be exercised based on concrete abuses, to be sure, but should also look broadly at the president’s behavior, past and probable.
Of course, impeachment is most often mystical in a much less flattering sense, as an ideal rarely honored but instead typically mired in petty party politics. It’s overwhelmingly likely the current Republican House majority will refuse to impeach Trump. In this circumstance, the people must elect a majority that will impeach—one that honors racial equality, protects the rule of law, and thereby saves democracy.