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August 26, 2017


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Deep State Special Legal Counsel

Similar to attorney discipline, Impeachment should only be considered for conduct or actions done in "bad faith." Clinton lied under oath, Nixon for burglary and obstruction. What did Trump do here? He believed he had the authority to pardon. It might be wrong, but not done out of bad faith. We don't "bang" people nor punish them for an "oops."

Steve L.

In Ex parte Grossman, 267 US 87 (1925), SCOTUS unanimously held that the pardon power extends to criminal contempt. (I am not including a link in order to avoid the spam filter.)

Steve L.

In the absence of a pardon, Arpaio would certainly have appealed. At that point, couldn't Trump just have directed the DOJ to confess error? And wouldn't that have been an unquestionable exercise of prosecutorial discretion?

Bernie Burk

Both great points, Steve.

Ex Parte Grossman demonstrates the wisdom of doing a little old-fashioned legal research, as I should have. Grossman had violated a federal court order abating a public nuisance, namely the speakeasy Grossman was operating in Chicago during Prohibition. He was convicted of criminal contempt. President Coolidge pardoned him. The case came before the Court on habeas corpus, apparently because Grossman's jailers refused to release him after he was pardoned.

The opinion is broadly reasoned and worded, and does as you say find the pardon power extends to criminal contempt. It expressly considers the separation of powers argument that Prof. Redish advances, and finds it unconvincing even in a more extreme hypothetical case: "If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President."

Redish might argue that this case is different because here the order in question enforced the Constitution itself (though this is not quite right because Congress confirmed, or perhaps created, the enforceability of the constitutional provisions at issue by enacting Section 1983). I don't see this as a distinction with a difference, especially given that, as I noted in the post, here the President pardoned one person for one set of violations of one order, while Grossman contemplates a pardon power sufficient to pardon many persons for many violations of many orders, effectively nullifying some provision or power of positive law whose creation is invested in another branch of government, with that power limited only by the political remedy of impeachment. I don't see the current Supreme Court reconsidering the principles Grossman articulates.

Your other point raises an interesting question: Can the Chief Executive obstruct justice by exercising his prosecutorial discretion, or urging his inferior officers to exercise the Executive's prosecutorial discretion, in favor of political cronies? We saw this issue recently in President Trump's alleged request to FBI Director James Comey to lay off Michael Flynn (Comey says he did; Trump denies it). Assuming it happened, was that an attempted obstruction of justice or other impeachable abuse of power? We may see that principle tested in coming days.

Yesterday, the Washington Post reported that President Trump also asked Attorney General Sessions to back off on the prosecution of Joe Arpaio while it was still pending. It seems to me this raises the same question. We may see more of this in coming days as well.



"Grossman contemplates [an order to the DOJ] sufficient to [preclude prosecution]of many persons for many violations of many orders, effectively nullifying some provision or power of positive law whose creation is invested in another branch of government, with that power limited only by the political remedy of impeachment. ... was [Was] that an attempted obstruction of justice[?]"

Where have you guys been?


I had a discussion with Steve about this - and while I think both of us have problems with Trump's behaviour, as it happens the issue of the pardon power for criminal contempt was addressed by the Supreme Court in Ex Parte Grossman – although by Taft, then Chief Justice, who perhaps was more solicitous of the Presidential powers he'd exercised in the past.

The decision is interesting because it does lay out rather well the arguments against the pardon power extending to contempt of court - Taft's sympathies were the other way.


I see Steve posted above - yep, we may disagree, but for now Ex Parte Grossman settles the legality under the constitution of the pardon - and wow, are there a lot of arguments that, absent that decision, it'd be very naughty indeed,


One more - I think Grossman is wrong, but then I'm not known for my respect for judges (professors complain, sheesh! You get off lightly) But if a client asked me, I'd say in light of Grossman, your argument may be right, but it's almost certainly a loser...

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