Democracy Dies in Darkness

Right Turn | Opinion

Legal challenge to Arpaio pardon begins

By Jennifer Rubin

August 30, 2017 at 9:35 AM

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Post editorial writer Quinta Jurecic says President Trump's reprehensible, and legal, pardon of former sheriff Joe Arpaio reveals weaknesses in the American system of government. (Gillian Brockell, Kate Woodsome/The Washington Post)

After President Trump's pardon of ex-sheriff Joe Arpaio, who had been convicted of criminal contempt for violating a court order designed to stop the violation of the constitutional rights of suspected illegal immigrants, conventional wisdom — and certainly the Trump administration — would have us believe that Trump's pardon powers are unlimited. However, never before has someone stretched the pardon power so beyond its original intent. Trump has now drawn scrutiny not simply from critics of his racist rhetoric but from the court itself.

The Arizona Republic reports:

U.S. District Court Judge Susan Bolton canceled former Sheriff Joe Arpaio's upcoming sentencing hearing for his criminal contempt-of-court conviction, telling attorneys not to file replies to motions that were pending before his recent presidential pardon.

However, Bolton on Tuesday stopped short of throwing out the conviction based solely on Arpaio's request. Instead she ordered Arpaio and the U.S. Department of Justice, which is prosecuting the case, to file briefs on why she should or shouldn't grant Arpaio's request.

In other words, this is no slam dunk.

Meanwhile, Protect Democracy, an activist group seeking to thwart Trump's violations of legal norms, and a group of lawyers have sent a letter to Raymond N. Hulser and John Dixon Keller of the Public Integrity Section, Criminal Division of the Justice Department, arguing that the pardon goes beyond constitutional limits. In their letter obtained by Right Turn, they argue:

While the Constitution's pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment's Equal Protection Clause.

Similarly, issuance of a pardon that violates the Fifth Amendment's Due Process Clause is also suspect. Under the Due Process Clause, no one in the United States (citizen or otherwise) may "be deprived of life, liberty, or property, without due process of law." But for due process and judicial review to function, courts must be able to restrain government officials. Due process requires that, when a government official is found by a court to be violating individuals' constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.

Put simply, the argument is that the president cannot obviate the court's powers to enforce its orders when the constitutional rights of others are at stake. "The president can't use the pardon power to immunize lawless officials from consequences for violating people's constitutional rights," says one of the lawyers who authored the letter, Ron Fein, legal director of Free Speech for People. Clearly, there is a larger concern here that goes beyond Arpaio. "After repeatedly belittling and undermining judges verbally and on Twitter, now President Trump is escalating his attack on the courts into concrete actions," says Ian Bassin, executive director of Protect Democracy. "His pardon and celebration of Joe Arpaio for ignoring a judicial order is a threat to our democracy and every citizen's rights, and should not be allowed to stand."

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Francisco Chairez, who spent a year in one of Maricopa County's notorious tent jails, says President Trump's pardon of former Sheriff Joe Arpaio is unfair to people like him who paid their debt to society. (Gillian Brockell, Kate Woodsome, Jesse Mesner-Hage/The Washington Post)

Those challenging the pardon understand there is no precedent for this — but neither is there a precedent for a pardon of this type. "While many pardons are controversial politically, we are unaware of any past example of a pardon to a public official for criminal contempt of court for violating a court order to stop a systemic practice of violating individuals' constitutional rights," Fein says. He posits the example of criminal contempt in the context of desegregation. "In 1962, after the governor and lieutenant governor of Mississippi disobeyed a court order to allow James Meredith to attend the University of Mississippi, the U.S. Court of Appeals for the Fifth Circuit ordered the Department of Justice to bring criminal contempt charges, which it then did," Fein recalls. "Eventually, while the criminal contempt case was pending, the Mississippi officials relented and allowed Meredith (and others) to attend the university. But if the president had pardoned the Mississippi officials from the criminal contempt, it would have sent a clear message to other segregationist officials that court orders could be ignored."

In other words, if the president can pardon anyone who defies court orders to enforce constitutional protections, then those constitutional protections are rendered meaningless. It is a creative argument, but then, this president has created new and disturbing challenges to democratic norms.

Lurking in the background is the potential for Trump to pardon associates involved in the probe of possible collusion between the Trump campaign and Russian officials and the possible obstruction of justice that followed. The Arpaio pardon may well have been an attempt to signal to those officials and ex-officials that they can resist inquiries with the assurance that Trump will pardon them. (Recall Trump's unprecedented remarks that Michael Flynn should hold out for a grant of immunity.) Using the pardon power to obstruct an investigation into his own possible wrongdoing would signal a constitutional crisis. "It is possible that such an act would be of such corrupt intent and so contrary to our constitutional system that Congress would use it as a grounds to impeach, and/or that the special counsel would see it as a grounds to indict for violations of federal criminal statutes related to obstruction of justice," Fein explains. Indeed, Congress can decide the president's conduct is impeachable even in the absence of a finding of criminal wrongdoing. Fein warns, "As for the validity of these pardons, because Trump pardoning associates to shield them and him from scrutiny by the special counsel would be such a corrupt and untested act, his associates would be wise not to rely on such a pardon providing them full protection as, in the end, it might not."

Other legal experts agree with this line of reasoning. Philip Allen Lacovara, a former U.S. deputy solicitor general in the Justice Department, who served as counsel to Watergate special prosecutors, argues in The Post today:

As with any other presidential power, the power to pardon is constrained by the ordinary requirements of federal law applicable to all public officials. For example, if representatives of a pardon-seeker arrived in the Oval Office with a bundle of cash that the president accepted in return for a pardon, there is little doubt that the president would be guilty of the crime of bribery. . . .  If Trump were to pardon any of the figures in the current Russia investigation, his action would certainly impede or obstruct the due administration of justice, as the courts have broadly construed that standard.

It would not be difficult to imagine Mueller making the case that the motive behind such interference was "corrupt." As the Founding Fathers made plain, the purpose behind the pardon power is to extend mercy to those who have offended and have demonstrated remorse. Using the pardon power to protect the president's own interests against embarrassment or exposure is not legitimate. Rather, a crassly self-interested exercise of presidential power to impede the due administration of justice is the very antithesis of the president's most solemn oath — "to take care that the laws be faithfully executed."

And this brings us back to Judge Bolton. Bassin notes, "Judge Bolton may want to see how the honorable lawyers of DOJ's public integrity section respond personally in open court — themselves as officers of the bar who've taken an oath to uphold the Constitution — to the blatant abuse of power by their boss." He adds, "After all, these are people who've dedicated their lives and careers to ensuring our public officials act with integrity and Joe Arpaio and now the President of the United States have spit in the face of that." Bolton's hearing will venture into uncharted territory, a voyage necessitated by Trump's utter disregard for the rule of law and his constitutional obligations to enforce the Constitution and laws of the United States.

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Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.

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