A President came to office under a cloud, to help govern a badly divided nation. But he squabbled with his own party, which controlled both houses in Congress, and abused the pardon power in ways that emboldened white supremacists and vigilante terrorists operating outside the law. To avoid accountability for his actions, he dismissed a critical figure in the executive branch, and this proved to be the final move that led Congress to impeach him.
That may sound like a description of the near future, but it is actually the story of Andrew Johnson, the first President in American history to face impeachment. There are crucial differences, though, in the scenarios of 1868 and 2017. For all of his numerous faults, Johnson inherited a nation in the midst of a constitutional crisis. Donald Trump, on the other hand, seems intent on fomenting his own.
Trump’s actions are hastening the prospects of impeachment because they pose the same two questions that Johnson’s did: who can the President fire, and who can he pardon? Trump lurched toward potential impeachment charges in May, when he fired James Comey, the FBI Director investigating the Trump campaign’s connections to Russia. Since then, Trump has left open the possibility of firing Robert Mueller, the special counsel continuing this investigation in the wake of Comey’s firing. Pundits have been spending considerable time weighing the legality of such a move and its likelihood of sparking impeachment.
Trump’s potential use of the pardon has also been implicated in calls for his impeachment. In July, Trump asked his attorneys about his pardon powers, concluding that “the U.S. President has the complete power to pardon.” He exercised that power on August 25, pardoning the unrepentant Joe Arpaio, the convicted Arizona sheriff notorious for racial profiling and violating the civil rights of jailed citizens. Trump announced the unusual move by tweet under the cover of a hurricane, having failed to conduct the Department of Justice review typical of Presidential pardons.
To his critics, Trump’s actions not only embolden the white supremacists and nativists who view Arpaio as a hero, but they also reinforce an impression of Trump’s weak commitment to the rule of law. If the President is willing to pardon Arpaio out of affinity with his contempt for legal process, they say, why would Trump hesitate to pardon members of his inner circle, his family, or himself? Does the President understand and respect the limits of his office? In short, the argument runs, Trump’s potential abuse of the pardon power for corrupt purposes portends a true constitutional crisis. Trump may have the legal power to pardon indiscriminately, but, say some legal scholars, he may still be impeached for abusing it.
The full article can be viewed on the Journal of the Civil War Era Muster blog.