The Arpaio pardon continues to stir the dust. Professor Joshua Geltzer offers the following summation on Lawfare:
Critical to the work of an amicus here would be exploring the Court’s precedent specifically on the pardon power. The leading case remains 1925’s Ex parte Grossman. That case established that a president can pardon a conviction for criminal contempt, just as Trump did for Arpaio. But it’s the underlying violation, not the contempt order sitting on top, that distinguishes Grossman from Trump’s putative pardon of Arpaio. A federal court had deemed Grossman to be running a speakeasy contrary to the law at the time and barred him from doing so. Another court found he’d continued to do so and therefore held him in contempt. President Coolidge pardoned Grossman to reduce his punishment to a fine because the President viewed imprisonment as too harsh a sentence for operating a speakeasy. That fits one traditional pardon paradigm: The President steps in to show leniency based on the particular facts of a case.
Trump’s pardon of Arpaio may be distinguishable from that. By his own account, Trump thinks Arpaio simply did nothing wrong. In this instance, the argument would go, that’s not Trump’s prerogative to determine, once the federal judiciary has found precisely the opposite by speaking to what the Constitution means in this context. Grossman itself explains that “[e]xecutive clemency exists to afford relief from undue harshness or evident mistake in the operation of enforcement of the criminal law” (emphasis added). And that’s just what Coolidge offered Grossman – some relief from enforcement of the criminal law. Trump, however, has attempted to overrule the federal judiciary’s very interpretation of the Constitution. And that, an amicus might argue, would run headlong into the separation of powers our country rightly holds so dear.
My bold. Not being a lawyer, I can only say this seems like a very fine hair to split. But it’s still a point, as Trump has strayed into the land that is supposedly the Judiciary’s private reserve – the interpretation of the law. It does seem to me that the Executive gets to interpret the law as well, but the Executive doesn’t get the last word.
