This letter from Protect Democracy and Free Speech For People, via Steve Benen, caught me completely off-guard. It urges the prosecutors in the Arpaio case not to abandon the conviction of Joe Arpaio just because of his Presidential pardon. Why?
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 another way, one of the most important safeguards for the Due Process Clause is the courts’ power to hold wayward law enforcement officials in criminal contempt.
The president’s unprecedented pardon of Arpaio undermines the rule of law by immunizing unscrupulous law enforcement officials from judicial review. The foundation of the role of courts as protectors of individual rights will be nullified if they cannot execute and protect their own orders. The pardon itself conveys the unmistakable message that similarly-situated local, state, and federal law enforcement officials need not fear the judiciary, because if they run afoul of a court order, the president will pardon them. …
Importantly in this case, President Trump has not issued a pardon after an acknowledgement by Arpaio (or Trump) of his guilt in the matter, as is the case with most pardons. Rather, President Trump has made clear that he believes Arpaio should never have followed the court’s order to begin with, and was right to ignore it. That factual context raises grave questions about this pardon’s potential to lead to other due process violations.
This issue is not just about Arpaio. Other local, state, and federal government officials will take cues from what happens next, and, if left unchallenged, the pardon will embolden unlawful official action. That is why the pardon power, properly construed with the Due Process Clause, does not allow a president to pardon a government official for contempt of court based on the official’s violation of an injunction ordering him to stop violating individuals’ constitutional rights.
That last paragraph is the fascinating kicker to this letter. While the naked language of pardoning a convict seems unrestricted, past Presidents haven’t used it in quite this manner, and have often been careful to justify their actions, with some exceptions, such as Clinton’s pardon of Marc Rich. President Trump’s pardon of Arpaio has been notable on several fronts, but I believe Protect Democracy has really hit the nail on the head (or the President in the nuts, if you’re feeling a trifle vulgar today). They suggest that using the Pardon power to protect corrupt government officials from prosecution and punishment by the court systems is un-Constitutional.
And the prevention of that corruption is really at the very heart of our system of government, if you think about it. When the monarchists of Britain controlled us, there was little to stop wholesale corruption – indeed, it wasn’t so much corruption as a way of life; the careful checks and balances of the Founders was intentionally designed to minimize such corruption.
I dearly hope this argument makes it to SCOTUS, because there are only three rigidly conservative ideological Justices on the Court: Alito, Thomas, and Gorsuch. Kennedy is the well-known swing vote, but remember this is the Roberts Court. Chief Justice Roberts has shown a sensitivity to the idea of a legacy. (This also assumes the left leaning side of court found this convincing. If they were to vote together, then charges of ideologically motivated judging would descend.)
I have no idea if the arguments presented by PD and FSFP really have merit. But it seems to me this is an opportunity for SCOTUS to declare itself. Is it ideologically motivated? Or does it consider itself a guardian of the Constitution, in all its complexity, and willing to say that it protects the people first, and the powers of the Presidency second?
