“This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution,” explained Prof. Noah Feldman. “Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.”
“An Arpaio pardon would express presidential contempt for the Constitution,” Prof. Feldman continued. “From this analysis it follows directly that pardoning Arpaio would be a wrongful act under the Constitution.”
Professor Feldman worried of a “a crisis in enforcement of the rule of law” if Republican congressional leaders refused to hold Trump to account.
“The Constitution isn’t perfect. It offers only one remedy for a president who abuses the pardon power to break the system itself. That remedy is impeachment,” Prof. Feldman concluded. “James Madison noted at the Virginia ratifying convention that abuse of the pardon power could be grounds for impeachment. He was correct then — and it’s still true now.”