President Donald Trump just can’t help giving the middle finger to the Bill of Rights whenever he can. His pardon of habitual civil rights abuser and former Maricopa County, Arizona, Sheriff Joe Arpaio is just the latest example.
When news broke last week that Trump had decided to pardon Arpaio, my first thought was, “But he can’t do that.” My second was, “He can’t do that … can he?”
Well, we’re about to find out—because the Arpaio pardon has sparked a whole new wave of legal questions and lawsuits. Among those questions: Are there constitutional limits on the presidential pardon? And can the executive branch pardon one of its own for a criminal conviction related to a blatant Bill of Rights violation?
If you’ll recall, Joe Arpaio was convicted of contempt of court because he refused to obey a court order mandating that he stop violating the constitutional rights of suspected undocumented immigrants. In December 2011, U.S. District Judge G. Murray Snow ordered Arpaio’s office to quit racially profiling brown people based on nothing more than their “Mexican-ish” appearance and an unfounded suspicion that said person might be undocumented or otherwise in violation of immigration law.
Essentially, the court said, “Hey, Joe? We’re gonna need you to quit stopping brown folks and demanding their papers.” And Joe, in response, said—and I’m paraphrasing—“LOL. No.”
Not only did he blatantly ignore the court order, he flaunted it. In April 2012, he informed PBS Newshour, “I’m still gonna do what I’m doing. I’m still gonna arrest illegal aliens coming into this country.”
Over the next several years, Arpaio continued to racially profile Latinos. His blatant defiance pissed off Judge Snow, who, in late 2015 held 21 days of hearings on civil contempt charges related to Arpaio’s ongoing racial profiling practices. In May 2016, Snow found Arpaio and three of his top deputies in civil contempt of court, and in August 2016, referred the case for investigation into whether Arpaio should be held in criminal contempt. As a result, federal prosecutors charged Arpaio with criminal contempt. U.S. District Court Judge Susan R. Bolton got saddled with the case and held a bench trial (a trial without a jury) on the criminal contempt charge. In July 2017, she found him guilty. (She did the bench trial over Arpaio’s objections; he filed a petition for review with the U.S. Supreme Court in May, arguing that Bolton deprived him of a jury trial and in so doing violated his constitutional rights.)
But then in waltzed Donald Trump, wielding the pardon power in a way that no previous president has ever wielded it.
According to former U.S. Attorney for Manhattan Preet Bharara, Trump violated U.S. Department of Justice (DOJ) guidelines regarding pardons. Generally, a president will ask for input from the DOJ, according to Bharara. Trump did not. And as Ryan Struyk pointed out in CNN, most presidents wait until the end of their term to pardon people, and they usually do it in groups.
Trump pardoning Arpaio—alone—in the first eight months of his presidency is almost unprecedented.
What is also virtually unprecedented is pardoning a person convicted of criminal contempt for violating a court order that, in turn, demanded they stop violating a constitutional right: Arpaio was flagrantly violating the constitutional rights of suspected undocumented persons and showed no remorse for it.
Trump, who fancies Mexicans to be rapists and drug kingpins, doesn’t see it that way. In Trump’s estimation, Arpaio is a warrior in the fight against “illegal” immigration.
“He’s done a great job for the people of Arizona,” Trump said at a press conference as he tried to justify the pardon. “He’s very strong on borders, very strong on illegal immigration. He is loved in Arizona”—which, by the way, his approval ratings suggest he is not. Trump also said that Arpaio had been treated unbelievably unfairly.
Actually, the people who have been treated unbelievably unfairly are the brown and brownish people in Arizona whom Arpaio terrorized for his more than 25 years as sheriff of Maricopa County.
For 18 months after the court issued its order, Arpaio and his deputies continued racially profiling suspected undocumented immigrants, according to the Washington Post editorial board. About 170 people were stopped in that period.
And Trump, being more than willing to carry water for white supremacists, pardoned him, talking about how beloved Arpaio was treated so unfairly.
Judge Susan Bolton, however, isn’t convinced. As reported by azcentral:
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.
It is unusual for a court to request briefing and arguments regarding a case after a presidential pardon. The pardon power has generally been understood to be expansive and unqualified. “Excepting cases of impeachment, it encompasses the most trivial, as well as the most serious offenses against the United States,” wrote Dr. Christopher Joyner, in a 1979 article titled “Rethinking the President’s Power of Executive Pardon,” which can be found on the National Criminal Justice Reference Service, a government website.
Importantly, Joyner wrote, “presidential use of the pardoning authority is immune from review by the courts and is external to the lawful purview of the Congress.”
“The President’s sole discretion is the ultimate judge of how, when, and if the pardon power should be activated,” he concluded.
Of course, Joyner’s article was written after President Nixon’s pardon for his involvement in the Watergate scandal. And certainly Joyner likely did not expect the likes of a lawless president who thumbs his nose at the Constitution at every opportunity to test the outer limits of his discretionary pardon power.
Judge Bolton, however, is about to test the limits of that discretion, and some attorneys are set to provide reasons why Donald Trump exceeded the constitutional limits of the pardon power.
A group of lawyers, including Protect Democracy (whose stated goal is to “hold the President and the Executive Branch accountable to the laws and longstanding practices that have protected our democracy through both Democratic and Republican Administrations”), have sent a letter to the Public Integrity Section, Criminal Division of the Justice Department. The lawyers argue in the letter that Trump exceeded the constitutional limits of the pardon power:
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.
In other words, the president cannot immunize from criminal liability government officials who violate the constitutional rights of others. At least, they shouldn’t be able to.
And it’s vital to remember that court orders have frequently been used to vindicate the civil rights of people suffering at the hands of white supremacists, garden-variety racists, and other ne’er-do-wells.
Ron Fein, legal director of Free Speech for People and one of the lawyers challenging the pardon, noted in an interview with Jennifer Rubin of the Washington Post that criminal contempt orders have been used to force desegregation.
“In 1962, after the governor and lieutenant governor of Mississippi disobeyed a court order to allow James Meredith to attend the University of Mississippi, the U.S. Court of Appeals for the Fifth Circuit ordered the Department of Justice to bring criminal contempt charges, which it then did,” Fein said.
“Eventually, while the criminal contempt case was pending, the Mississippi officials relented and allowed Meredith (and others) to attend the university. But if the president had pardoned the Mississippi officials from the criminal contempt, it would have sent a clear message to other segregationist officials that court orders could be ignored,” Fein went on.
That’s what sets this pardon apart from your average presidential pardon. This isn’t a matter of pardoning someone for a criminal conviction. There was no statutory violation here. This is an entirely different beast.
Permitting the executive to pardon another member of the executive—which Arpaio is at the state level, because law enforcement falls under the executive branch—who has violated people’s civil rights based upon nothing but their ethnicity renders the Bill of Rights, which is the ultimate protection for individuals to guard against the abuse of executive power, essentially useless.
Unfortunately, this is not an argument that has been tested. It’s novel. And ultimately, Judge Bolton may find that she is without power to do anything other than accept the pardon.
Because the inconvenient truth is that the Constitution gives Trump the right to pardon whomever he wants—except in impeachment cases—and there’s very little we can do about it. This is especially true if the arguments against Trump’s use of the pardon are more informed by widespread derision of this administration and him personally but not by law and policy.
Another question that arises is whether or not the people whose rights that Arpaio violated—all those brown people he and his deputies racially profiled—have standing to sue? And if so, who do they sue? Arpaio himself? Donald Trump?
What is clear is that should Trump’s pardon stand, there’s nothing stopping him from, for example, pardoning federal law enforcement officers who brutalize Black people or pardoning state law enforcement whose brutality leads to a DOJ investigation and prosecution.
And considering the DOJ efforts under Attorney General Jefferson Beauregard Sessions III to remilitarize the police and launch a “law and order” war against brown and Black people, we need the Bill of Rights more than ever.