The pardon last week of former Maricopa County, Arizona Sheriff Joe Arpaio by President Donald Trump was an egregious act, one that did substantial damage to the rule of law in the United States. Not surprisingly, it unleashed a storm of criticism.
However, much of that criticism has been misdirected and distracts us from the case that should be made against the president.
Arpaio was found guilty of criminal contempt for defying a federal injunction designed to stop him from detaining immigrants solely on the suspicion that they were in the country illegally. The judge found that the sheriff “willfully violated the order by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” Arpaio faced a sentence of up to six months in jail and a substantial fine.
Critics suggest that the president did not have the authority to issue a pardon in a case of criminal contempt. Their reasons vary. One argues that the Trump’s action violates the Constitution’s due process clause, and, as a result, “the pardon power must be construed to prevent such a violation.” Another notes that the limits on the president’s power to grant pardons in cases of contempt are implicit in the very structure of constitutional governance. He warns, “If there were no such limits on the pardoning power, … what would the supposed protections of the U.S. constitution be worth?” Still another says that pardoning Arpaio might even constitute an impeachable offense.
The real issue in Trump's pardon of Arpaio is not whether it was legal, but whether it was a wise or appropriate thing for him to do.
While I share the view that Trump’s action was deeply damaging to the rule of law, critics are wrong to claim that it was unconstitutional.
The United States Supreme Court made this clear almost 100 years ago when it held in Ex Parte Grossman that the president has the authority to grant pardons even to those who defy court orders. Writing for a unanimous court, Chief Justice William Howard Taft, himself a former president, noted: “The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments.”
While warning that pardoning criminal contempt “would certainly embarrass courts” and diminish the “deterrent effect” of future contempt of court judgments, Taft concluded that neither of these problems “justify our reading criminal contempts out of the pardon clause.”
The real issue in Trump’s pardon of Arpaio is not whether it was legal, but whether it was a wise or appropriate thing for him to do. It was neither, and signaled the president’s lack of commitment to a central tenet of the rule of law, namely equal treatment before the law. As Sally Yates, the deputy U.S. attorney general who was fired by Trump for not to defending his executive order on travel and immigration, put it, “With his pardon pen, POTUS reveals his own contempt for our Constitution, our courts, and our founding principles of equality and justice.”
Defy the courts in the name of a policy that the president wants pursued, and he will insure that doing so carries no legal consequence.
The damage done by Trump’s pardon becomes clear when we consider another Supreme Court case, this one decided more than 40 years after Ex Parte Grossman.
In that case, Walker v. Birmingham, the court was faced with a challenge to an injunction issued by an Alabama trial judge during the height of civil rights protests in the American south. The trial judge enjoined protesters, led by Martin Luther King Jr., from holding a march against racial segregation in Birmingham. They defied the court order and held their march anyway. Subsequently, they wanted to challenge the constitutionality of the injunction.
The Supreme Court, even as it acknowledged the merits of their claim, upheld the contempt judgment against them. As the court put it:
An injunction duly issuing out of a court of general jurisdiction … served upon persons … must be obeyed by them however erroneous the action of the court may be … It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error … either by itself or by a higher court, its orders … are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.
Trump’s pardon sends a dangerous message: Defy the courts in the name of a policy that the president wants pursued, and he will insure that doing so carries no legal consequence. As Vanderbilt Professor Colin Dayan wrote to me after the pardon, “Now that Arpaio has been pardoned, jailers, prison officials, IRS and ICE [or U.S. Immigration and Customs Enforcement] officers will get the green light to treat cruelly and unusually anyone poor, unlucky, or dark enough to be seized and contained by them.” In such a world, the rule of law cannot long survive.
In Walker, Justice Potter Stewart concluded that “respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”
If this was true in a case involving citizens trying to realize the promise of equality in the United States, it is certainly true for public officials who, like Arpaio and Trump, seek to impede it.
Previously published by US News, August 28, 2017