Presidential Pardon Power May Not Be So Absolute After All

Updated:
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.

  • Joe Paulson

    Young v. United States was a divided court and one member of the majority (Scalia) was concerned with a major aspect of the holding. A problem for me is that in this case Arpaio was already out of office when the pardon came down. As a matter of a constitutional bar (as compared to horrible policy or even impeachment worthy action), that complicates the compelling need to defend court action especially with civil means to address the issue.

    • Jeff Brooklyn

      Close call. It seems odd that if a sheriff , upset at a contempt order, killed the entire Supreme Court and their dogs , Trump could pardon him.
      Yet, it is argued that Trump should not
      have the power to pardon a case of criminal contempt, a misdemeanor because of the harmful impact on enforcement of judicial orders.
      Don’t all pardons undercut judicial (and jury) decisions?

      Also, as with search and seizure cases, the limitation engenders lying. As the article states, there were many other grounds that would be ok. As example, I have seen many parole decisions vacated and sent back, only to get a different reason which was upheld. Cops often lie about probable cause.

      Would there be litigation on the issue of good faith if other reasons are given? Would limiting this power have any practical or beneficial effect?

      • 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.

  • C Jay Robbins

    A fascinating policy argument with absolutely no support in the text of the Constitution at all. The president ” shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This is obviously not a case of impeachment, so what are we arguing about?

    The more obvious argument is that the president, as one of only two nationally elected officials, must have plenary authority to reach down and correct abuses of power by prosecutors or courts, or both. We plebs still need our tribune. “Ego te provoco!”

    Paul Penzone solved the Arpaio problem by beating him in the election. Obviously, the voters decided that they would rather have a sheriff who works as a sheriff.

    I agree that the idea of emasculating the courts is disturbing because fear is an excellent incentive to obedience and respect. However, the idea that an unelected judicial official can countermand the constitutional pardoning authority of the elected president is more disturbing. Rather than encouraging yet another judicial end run around an elected official, Mr. Miller should put his considerable legal talents to suggesting an amendment to the Constitution. Put it to the people.

  • J.E. Tarrant

    Only an attorney could come up with reasoning this bizarre. Effectively this is an essay that simply says that the author does not like Donald Trump or Joe Arapaio, it gives an extremely one sided view of the former Sheriff. For example, it leaves out that one of the many “civil rights” cases that the Sheriff won was preventing the inmates in his jail from having sexually explicit material-because female deputies complained the inmates were openly masturbating. Not all of the Sheriff Arapaio’s policies were over reaching or part of some vile conspiracy, unless the author is now claiming that allowing those subject to pre-trial detention to sexually harass County employees is in someway a good thing.

    Yet the retired Sheriff’s good or bad attributes are not relevant. The reason the power to pardon contempt of court has not been challenged since 1925 has more to do with the obviousness of the power’s being absolute rather than the context of the time. This is why, I expect, there is no legal reasoning contained in this essay for that which it promotes. The power to pardon is absolute, it does not require that the President have reasons that a particular court approve of. Bill Clinton sold pardons. I do not like that, and I do not think he should have, however, the President has that power. Encouraging courts to reinvent the Constitution to suit an expedient of the moment erodes the rule of law, and is exactly the sort of behaviour that will plunge a nation into chaos.

    • Mr. Fusion

      Courts “interpret” the Constitution all the time. That isn’t reinventing it at all. Or maybe you may point to any part of the Constitution the courts have not visited and opined on at some time. (I do believe the Third Amendment hasn’t been challenged in the courts)

      Nor did Bill Clinton sell any pardons. But that makes a good line in order to denigrate someone out of office and irrelevant to the article.
      ***

      The right to pardon is restricted to “Offenses against the United States”. Contempt is not a crime against the United States, but rather, as the article points out, the means of a court to control their process. While most crimes are considered crimes against society, contempt isn’t. In this case, it was the enforcement to stop crimes against people and their personal and Constitutional rights.

  • James Christopher Desmond

    Were I Mueller, I’d want to explore, after Trump pardons his co-conspirators, indicting him for obstructing justice by misusing his pardon power. Just because he’s legally able to pardon them doesn’t mean that such action could not be cited as evidence of obstruction.

    I’d then file a supplemental indictment if those already pardoned co-conspirators commit a new crime (say, perjury) when called to testify against Trump and Trump then again pardons them to get them off the perjury hook. Each misuse of the pardon power, once shown to be aimed at obstructing Trump’s ultimate prosecution, could support a separate obstruction charge.

  • James Christopher Desmond

    MESSAGE TO MUELLER: Trumpolini’s legal use of his Pardon power for any credibly alleged co-conspirator CAN NEVERTHELESS support an Obstruction of Justice count in an indictment against him. It’d be up to a jury to decide whether he pardoned for corrupt (obstructionistic) motives.

    Plus, you can supplementally indict if he re-pardons any cronies for committing perjury (and you freshly indict them for that) on Trump’s behalf. Plenty of obstruction cases are made on the use of an otherwise legal act if it’s predominant purpose is to obstruct a criminal investigation/prosecution.

    Finally, don’t bog your case down in trying to prove electoral-machinery collusion with Putin’s boys. Stick with the easier, plain-vanilla corruption charges (money laundering, quid-pro-quo promises to vitiate sanctions in exchange for campaign assistance or to further a real estate deal, etc.). The masses can better understand and accept “vanilla-simple” charges. It’s why Spiro Agnew promptly resigned. See also Al Capone (tax evasion).

  • Jerry Allen

    Not being an attorney, my legal knowledge is not nearly as broad or deep, however, it gives me great hope
    that the New York State and New York City DA’s are reportedly thoroughly examining the apparent wide
    spread financial felonies of Trump and his band of thieves. Federal pardon(s) are probably coming for many
    people associated with this bunch, but New York appears to be ready to step in and hand out the justice that’s
    so obviously called for here. I think it would be in the best interest of the United States as well as the State of New York to seize properties owned and operated by this organized crime family as partial payment for the tens of
    millions of dollars that will be due when the tax evasion scam that’s been going on for decades is finally uncovered.

  • Charles Coleman

    Mr. Miller’s statement, paragraph 13: “Much has changed since 1925”, ignores the fact that our U.S constitution has not changed, not will it ever. Lest we forget, Mr. Obama pardoned treasonous, despicable, “Chelsea Manning.

  • Mr. Fusion

    The State of New York would sue Trump in a State Court. As a resident of New York State, he doesn’t have any immunity under State law not appear. Nor may Trump pardon anyone for a State crime.

    Eric Schniederman, the NY AG, is fully entitled to lay charges at any time against the President. Those charges may be stayed as long as he is in office, (or may not) but won’t go away. The State of NY may seize Trump’s properties if he refuses to answer any summons after being charged with money laundering. (ya, see “asset forfeiture”)

    I find it funny that a Trumpette would threaten a civil war if Trump is brought to justice.

  • Rancier360

    Pure subjective speculation on the part of this ‘analyst’ on Constitutional Law. He asserts that “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.”

    But the author of this opinion piece, former U.S. Representative from North Carolina Brad Miller, is a Democrat, so it’s no wonder. That’s all they do these days is try to think up ways to attack our Constitutionally elected President, a man who just wants to do the right things to Make America Great Again.

    Democrats for the most part are just sore losers, trying to undo a constitutional election by nefarious means, even if it means appeasing and collaborating with our enemies who hate America to the bone.

    “What Happened?”

    Trump happened! He is our President now. Stop making excuses and get over it. Stop trying to divide the nation.

    In the wise words of that great white supremacist* of yesteryear, Abraham Lincoln: “A house divided against itself cannot stand.”

    Defend America!

    * Ref. 4th Lincoln Douglas-Debate, September 18, 1858, Charleston, Illinois
    https://www.nps.gov/liho/learn/historyculture/debate4.htm

  • HappyJack1

    This is something democrats do everyday in nearly every state and get away with it without so much as a murmur from the likes of people like you. Wisconsin is a good example of abuse of power.

  • marlette782

    After 230 years this lawyer has discovered that the pardon power has been misinterpreted all this time. He must have some brain to catch what everyone else has missed for the past two centuries. And there is nothing illegal about detaining and deporting illegal immigrants. Wonder what would happen if i had an undocumented gun. Wonder if Miller would defend me. Nope.