President Trump's Pardon of Sheriff Joe Arpaio: Can it be Invalidated?

 President Trump’s Pardon of Joe Arpaio: Can it be Invalidated? 

For 24 years, Sheriff Joe Arpaio was known as “America’s Toughest Sheriff,” but he ran into legal trouble in the past few years. In May 2013, United States District Court Judge Murray Snow found that then-Maricopa County Sheriff Arpaio and the Maricopa County Sheriff’s Office had engaged in racial profiling[1] and harassment of members of the Spanish-speaking community in Maricopa County, Arizona.[2] To remedy these violations, Judge Snow issued an injunction, ordering the department to cease using race or ancestry as a basis for traffic stops.  

More than three years later, the Department of Justice filed a criminal contempt case against Arpaio, alleging that he had violated the injunction.[3] In July 2017, United States District Judge Susan Bolton found Arpaio guilty of criminal contempt of court for having willfully defied Judge Snow’s injunction by continuing to target Latinos for traffic stops for at least 17 months after the injunction was issued. With his sentencing scheduled for early October, the former sheriff faced the possibility of spending up to six months in jail for these violations.

Late on the evening of August 25, President Trump pardoned Arpaio. Judge Bolton issued an order on August 29, vacating the sentencing date, but scheduled a briefing and arguments for October 4 to determine whether to vacate his conviction. A month after the pardon, the United States’ legal community has become entangled in a debate on the constitutionality of President Trump’s pardon.

President’s Pardoning Power

Article 2, Section 2 of the United States Constitution provides that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”[4] Presidents have traditionally granted pardons in two situations: near the end of each year as a show of goodwill and forgiveness[5] and in the final days of an administration, when the President no longer needs political capital and loses little by such pardoning.[6]

Legal Issues Involved in President Trump’s Pardon of Joe Arpaio

Professor Josh Dressler at the Moritz College of Law at Ohio State University expressed concern over the pardon, saying, “There is something especially disturbing here when the crime the person is receiving a pardon for is criminal contempt of the court.”[7]

Groups such as the “Protect Democracy Project” and the Macarthur Justice Center, as well as nationally-renowneded law professors Erwin Chemerinsky and Michael Tigar, have submitted briefs in anticipation of the October 4 hearing, arguing that the pardon is invalid. These briefs provide several arguments that President Trump’s pardon violates the Constitution.[8] We will discuss three of the strongest such arguments.

The first argument rests on the Fifth Amendment’s “due process” clause, which requires that no person “shall be…deprived of life, liberty, or property, without due process of law.” The argument suggests that the pardon violates the due process rights of the people who were unfairly targeted by Arpaio and his office due to racial profiling. In its brief, the Protect Democracy Project writes that the pardon violates due process because it “forgives” Arpaio for taking actions that limited the protection of people’s rights. Such an action makes the due process guaranteed by law “an empty promise.”[9]

            The second argument relates to the President’s constitutional authority under the pardon clause. Critics point to the text, which provides that the President can only pardon “for Offenses against the United States.” The argument here is that a criminal-contempt conviction isn’t the same as an “offense against the United States” because contempt is not treated as a classical “crime” under the United States Code.

The third argument is based on separation of powers. In his brief, Professor Chemirinsky writes that federal courts, as the judicial branch, have developed the contempt of court charge to redress disobedience of a court’s orders. As such, a contempt of court charge is unique to the judicial branch, not a penal law developed by the legislature. By pardoning Arpaio, critics argue that President Trump and the executive branch are undermining the judicial branch’s ability to protect its own processes.[10] In an interview, Chemerinsky admitted that his argument is unsupported by legal precedent, but he argues that the legal precedent on the subject is “wrong.”[11]

Against these arguments, President Trump and Sheriff Joe supporters emphasize that through more than 200 years of jurisprudence, the president’s pardon power has always been viewed as extensive and that presidents have always been free to use it as they see fit.[12] In Ex Parte Garland, Associate Justice of the United States Supreme Court Stephen Johnson Field even wrote that except in cases of impeachment, “the power is unlimited.”[13]

Arpaio Supporters also find backing in the only Supreme Court case in our nation’s history that dealt with a presidential pardon of a criminal contempt of court offense. In that 1925 case, Ex Parte Grossman, Philip Grossman was ordered to stop selling liquor during prohibition. He ignored the order and was sentenced to one year in prison for violating the National Prohibition Act. Soon afterwards, President Calvin Coolidge pardoned Grossman, reducing his sentence to the payment of a fine. The Court held unanimously that the President did have the power to pardon Grossman for a criminal contempt of court.[14] Chief Justice William Howard Taft (who, incidentally, is still the only person ever to serve as President and Justice of the Supreme Court), did caution, “Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.”[15] Still, the result of the case and its decision placed no limitations on the pardon power. In fact, all the arguments against the pardon’s validity rely on theories unsupported by precedent.

The saga of Sheriff Joe continues to unfold, as Judge Bolton recently ordered Department of Justice to provide the legal grounds for having the criminal-contempt conviction dismissed.[16] President Trump’s first use of his pardon power has drawn both praise and criticism and may lead to more debate and clarification of the Presidential pardon power.