The Arpaio Pardon: Awful, But Not Unconstitutional

"Pardoning Joe Arpaio Would Be a Constitutional Crisis" proclaims the headline of this article by Bob Bauer in Foreign Policy. The text of the article is less extreme, with no mention or definition of a constitutional "crisis." Yet Bauer's argument is in line with most of the criticism published in the last week arguing that President Trump's recent pardon of Sheriff Joe Arpaio would likely support a case for impeachment against Trump. Bauer writes:

[W]hile the president may well get away with the specific act of pardoning Arpaio, this action will not be without effect on future calls for impeachment. Unlike a pardon of himself, family members, or aides in the Russia matter, pardoning Arpaio would probably not result in the immediate demand for an impeachment inquiry. If, however, impeachment pressure increases, or a formal impeachment inquiry is launched on the basis of Russian “collusion,” obstruction, or on other grounds, an Arpaio pardon in the background will be highly damaging to the President’s position. It will immeasurably strengthen the hand of those arguing that Donald Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to be entrusted with the presidency.

(Bauer's article was published on August 25, 2017, prior to Trump's pardon of Arpaio). In the August 24, 2017 edition of the New York Times, Martin Redish argues that Trump's pardon of Arpaio would be unconstitutional because it violates the due process clause of the Fifth Amendment -- a theory that Redish admits is "novel" and unsupported by any Supreme Court opinions.

Other commentators call for Trump's impeachment as a result of the pardon. Noah Feldman claims that Trump's pardon of Arpaio is "so exceptional -- and so bad" because it involves the charge of criminal contempt of court. Explaining the background for Arpaio's conviction, Feldman writes:

Specifically, Arpaio was convicted this July by Judge Susan Bolton of willfully and intentionally violating an order issued to him in 2011 by a different federal judge, G. Murray Snow.

The order arose out of a civil suit against Arpaio brought by the American Civil Liberties Union, accusing him of violating the law by detaining undocumented immigrants simply for lacking legal status.

Snow issued a preliminary injunction that ordered Arpaio to stop running so-called saturation patrols -- police sweeps that essentially stopped people who looked Latino and detained those who were deemed undocumented. The basic idea was that the profiling, warrantless stops and detention were unconstitutional.

Yet despite the federal court’s order, Arpaio kept running the unlawful patrols for at least 18 months, and publicly acknowledged as much.

Arpaio was subsequently convicted of criminal contempt of court as a result. Feldman argues that Trump's pardon of Arpaio reflects "express presidential contempt for the Constitution," and "undermine[s] the rule of law itself" because it effectively pardons the willing violation of constitutional rights. Feldman's critique grows more abstract, as he argues that a pardon would "threaten the very structure on which [Trump's] right to pardon is based," and that "the president is breaking the basic structure of the legal order" by blocking the authority of the courts to tell law enforcement what the law is. Frank Bowman advances a similarly-toned argument, lamenting that the pardon is an impeachable offense because it is "a direct attack on the constitutional powers of the judiciary as a coordinate branch of government."

While I agree with these commentators that Trump's pardon of Arpaio is a bad thing, I am less inclined to argue that it undermines the "rule of law" or that it creates any constitutional crisis. I certainly do not think that it violates the Constitution.

On the constitutionality front, Ex Parte Grossman is a difficult obstacle for any would-be claim of unconstitutionality. There, the Supreme Court upheld a pardon of a conviction for criminal contempt of court, noting that the hypothetical impact of abusive pardoning of criminal contempt does not warrant "reading criminal contempts out of the pardon clause." Considering the hypothetical of even broader abuse, the Court noted:

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.

It is important to consider Grossman's broader lesson, particularly for critics like Bowman who argue that Trump's pardon is an attack on the constitutional powers of the judiciary. Any pardon undoes a judicial ruling -- it is a direct check that the executive branch of government has on the judiciary. Trump, in pardoning a conviction of criminal contempt stemming from constitutional rights violations, has simply laid out this conflict in what may be its rawest possible form. While it is "emphatically the province and duty of the judicial department to say what the law is," the Constitution explicitly grants the President the ability to override whatever the courts might say, and does not place any procedural constraints on the pardon power (such as a requirement that the Department of Justice review a petition for a pardon) or restrict the power to instances that are apolitical. Accordingly, Trump's pardon is an instance where the executive's check on the judiciary is extremely apparent, but this does not warrant cries of a "constitutional crisis" or a threat to "the very structure on which the right to pardon is based."

That being said, I believe that Trump's pardon of Arpaio is a disturbing endorsement of race-based enforcement of laws, and helps out a former Sheriff who has done many, many terrible things. And critics should still point out all of the problems with Trump's pardon, and should emphasize that Trump has just endorsed a brutal and senseless approach to law enforcement.

And you may notice that my argument above does not dismiss the possibility of impeachment. I don't. And I won't. Because as the too-often ignored case of Nixon v. United States tells us, the basis for impeachment is a political question, meaning that impeachment effectively means whatever Congress decides, and the courts will not review or challenge the determination. Interestingly, the Court would likely say the same of any challenge to Trump's use of the pardon power. Trump can pardon whatever the heck he wants, but on the flip side, he can be impeached for whatever the heck Congress wants.

At base, this system may seem imprecise and the implications of pardons and impeachments may be profound. But it is ultimately how the system was designed. Trump's recent pardon is not a crisis, but is instead an example of the system in operation, albeit an operation performed for an awful reason. It is not a system that is in crisis.