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.
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.
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.”