Where are the calls for obstruction charges?
On the matter of President Donald Trump’s pardon of Sheriff Joseph Arpaio, just about any bad thing that could be said has been said. This is the second of a two-part series on the subject, and in the first I described the pardon as “unmerited, unnecessary, and impulsive.” My words were pretty tame compared with those of other disapproving commentators.
But one word you didn’t hear much was “obstruction.”
The word “impeachment” has been invoked here and there. Such talk is fairly muted in Democratic circles, though, at least where the Arpaio pardon is concerned. This apparent smidgeon of self-awareness is welcome. In the context of impeachment, Trump’s clemency grant cannot be discussed without inviting comparisons to disgraceful pardons and commutations issued by Presidents Obama and Clinton.
There is a good reason for that, which we’ll get to.
Notice, though, that despite broad disapproval of the Arpaio pardon, cutting across partisan and ideological lines, few critics have panned it as an instance — or yet another instance — of Trump’s potentially criminal obstruction of legal processes.
That seems strange. After all, there have been strident calls for the investigation and possible indictment of Trump over his purported obstruction of the Flynn probe — i.e., the FBI’s investigation of retired General Michael Flynn, fleetingly the president’s national-security adviser. Those strident calls have not been for naught: They led to the appointment of Special Counsel Robert Mueller. Obstruction is said to be a critical component of his ongoing Trump-Russia investigation.
The specter of obstruction was first raised by James Comey, the FBI director eventually fired by Trump — a firing that Trump detractors promptly added to the putative obstruction case. In fact, when it came to light that Comey steered to the New York Times an internal FBI memo he’d written about Trump’s pressuring him over Flynn, the former director admitted he was hoping to trigger the appointment of a special counsel to investigate the president.
Consider this: A pardon is the ultimate obstruction of a criminal investigation. It is checkmate. The federal prosecutors and investigating agents in the Arpaio case could complain as vigorously as former director Comey has about the president’s trampling on the independence of law enforcement. But it would change nothing. A presidential pardon stamps their file case closed.
The Flynn case was never closed. Trump did not pardon Flynn, though he could have (and still could). By any fair accounting, the president’s expression of “hope” that Comey would drop the case constitutes heavy-duty pressure from the boss. But as we’ve repeatedly pointed out, pressure is not obstruction. The investigation was not shut down. It continues and, according to some reports, portends real jeopardy for Flynn.
Consider, also, the circumstances surrounding the Arpaio pardon. It has been reported by the Washington Post that, weeks before the former top lawman in Maricopa County was put on trial, President Trump indicated to Attorney General Jeff Sessions that he would like to see the case dropped. Sessions is said to have told the president that doing so would be inappropriate. Trump thus agreed to let the prosecution go forward . . . but with the proviso that he would issue a pardon if Arpaio were convicted — a foolish calculation on Trump’s part (we’ll get to that, too).
To repeat: The pardon completely aborts the prosecution of Arpaio. Yet it is not the pardon that has prompted shrieking about obstruction; it is Trump’s consultation with Sessions. Of course, far from aborting the case, the upshot of that consultation — breathlessly decried as political interference in law enforcement — is that Arpaio was fully investigated, tried, and convicted.
