Presidential Pardon Power May Not Be So Absolute After All

Posted in: Constitutional Law

The chances are miniscule that President Trump gave deep, scholarly consideration to the constitutional separation of powers implications of his pardon of former Maricopa County Sheriff Joe Arpaio for criminal contempt of court. It is unlikely that his already harried lawyers gave the question much more thought—if Trump even asked for their advice.

The presidential power to pardon the federal crime of contempt of court may not be as limitless as they assume, however. It certainly should not be.

Arpaio’s conviction was more of a lifetime achievement award for contempt of court than punishment for a single act of defiance. Arpaio has been named repeatedly in legal proceedings for constitutional violations, which have cost Maricopa County taxpayers tens of millions of dollars. Arpaio’s abuses of power were many. Arpaio conducted vindictive criminal investigations of political opponents on flimsy, exaggerated or even fabricated evidence. The targets of his investigations included two members of the county board of supervisors, superior court judges, and a former state attorney general. He publicly investigated his 2004 election opponent for an alleged rape 30 years earlier. He investigated lawyers who brought lawsuits that challenged his conduct, a journalist who wrote unflattering articles, and reportedly a federal judge who issued an unfavorable ruling in a racial profiling case. Arpaio sent a SWAT team in the dead of night to conduct a search of the home of the school superintendent, a tactic usually reserved for the most violent suspects.

Arpaio was generally happy to provide the press with sordid details of the accusations. A now former Phoenix mayor whom Arpaio investigated for child molestation called Arpaio’s tenure a “reign of terror.”

The victims of Arpaio’s taxpayer-funded political vendettas incurred ruinous legal expenses and suffered permanent damage to their reputations, but the investigations resulted in exactly one conviction. The school superintendent, who was accused by Arpaio of all manner of public corruption, pleaded guilty to a minor misdemeanor that had not been part of Arpaio’s investigation. She had hired her daughter nine years earlier without express approval by the school board, a requirement of Arizona law for the employment of relatives of certain school officials. It was at worst a technical violation of an obscure statute.

The county attorney, an Arpaio ally, was disbarred for his role in the investigations.

But it was Arpaio’s signature abuse of power—racial profiling—that led to his conviction in July for criminal contempt of court. The federal government revoked Arpaio’s authority to enforce federal immigration laws because of Arpaio’s repeated violation of the constitutional rights of Latinos, but Arpaio continued to conduct neighborhood sweeps of Latino communities and traffic stops to detain suspected undocumented immigrants. In 2011, the federal court ordered Arpaio not to detain anyone who was not credibly accused of anything other than undocumented immigration status, not even people with brown skin who spoke Spanish.

Arpaio argued at trial that the order was vague and any violation on his part was unintentional. Since the court issued the 2011 order, however, Arpaio had repeatedly expressed his disdain for the court and for the federal government generally. He reveled in the national attention to his defiance. He said in one television interview that he would “never give in to control by the federal government.”

The court had a ready way to assert its authority if Trump had ordered federal prosecutors to drop the contempt of court charge, Trump’s initial plan from which Attorney General Jeff Sessions dissuaded him. The US Supreme Court has spoken directly on this point in Young v. United States (1987):

The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches…. The ability to appoint a private attorney to prosecute a contempt action satisfies the need for an independent means of self-protection, without which courts would be mere boards of arbitration whose judgements and decrees would only be advisory.

The same reasoning suggests that the presidential power to pardon, although absolute on its face, should not extend to contempt of court, or at least that there should be limits to that power. A presidential pardon of criminal contempt of court, whether before or after trial, would also effectively deprive the court of the power to punish disobedience and vindicate the court’s constitutional authority.

But any limits on the president’s power to pardon criminal contempt of court are less clear. In Ex Parte Grossman (1925), the defendant sold liquor at his business in violation of Prohibition. In other words, the defendant ran a speakeasy. The district court issued an order that the defendant stop. Less than two months later, the defendant was caught selling liquor again. The court found the defendant guilty of contempt of court and sentenced him to imprisonment for one year and to a $1,000 fine. By way of a pardon, the president reduced the defendant’s sentence to the fine. The court denied the president’s power to pardon contempt of court and committed the defendant to imprisonment. The attorney general appointed special counsel to argue to uphold the imprisonment, but argued as amicus that the pardon was valid.

The Supreme Court upheld the pardon. The power to pardon was a check on the judiciary “to ameliorate or avoid particular criminal judgments,” the Court said. “It is a power entrusted to the executive for special cases.” “To exercise [presidential pardon power] to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it.”

Much has changed since 1925.

Courts should not now unquestioningly follow Grossman and regard as valid any pardon of criminal contempt of court in any circumstances. The pardon in Grossman was to reduce a punishment that the president thought unduly harsh based upon “circumstances which may properly mitigate guilt,” the proper purpose of the president’s pardon power. Trump did not pardon Arpaio because Arpaio is 85 and his wife is in poor health, or because Trump thinks that Arpaio’s punishment is unduly harsh, or because Arpaio is contrite (Arpaio clearly is not), or because of any other circumstance that “might mitigate guilt.” Trump granted the pardon because Trump shares Arpaio’s disdain for the constitutional rights of the Latinos whom Arpaio detained, for the rule of law generally, and for the court’s order specifically.

Trump regards Arpaio as “an American hero” and his pardon is an intentional insult to the dignity and constitutional power of the courts.

The conduct of the defendant in Grossman violated public morality as then expressed by Prohibition, but did not violate the rights of any particular person. The court issued the 2011 order in a civil lawsuit brought by Latinos who were victims of racial profiling. The pardon leaves those plaintiffs without effective recourse in the courts to protect their constitutional rights, a result that Trump intends.

The Court in Grossman said that the prospect of the president’s granting “successive pardons of constantly recurring contempts” to “deprive a court of power to enforce its orders” was “so improbable as to furnish but little basis for argument.” “Exceptional cases like this,” the Court said, “if to be imagined at all, would suggest resort to impeachment rather than to a narrow and strained construction of the general powers of the President.”

Successive pardons by President Trump to defeat the power of the courts to enforce judicial orders is not hard to imagine at all—it seems highly possible, perhaps even likely.

The Court’s suggested check on that abuse of presidential power—impeachment—is wildly impractical. There are almost no circumstances in this era of blind partisan loyalty and intense division in which two-thirds of the Senate would vote to remove the president from office. Senators Jeff Flake of Arizona and Dean Heller of Nevada are already in deep trouble with Republican primary voters for insufficient obedience to Trump. Impeachment proceedings would only deepen partisan divisions.

If our Constitution is to survive, there must be some other check on the president’s power to pardon those who violate the Constitution with his blessing.