There has been much wailing and gnashing of teeth over whether President Trump’s pardon of former Arizona Maricopa County Sheriff Joe Arpaio is a violation of the Constitution or a breach of the rule of law. That’s silly. Rather, it was a humane act of a practical and sensitive Chief Executive.
Some of the arguments that what the President did was wrong are rather fanciful. My favorite comes from my colleague, Martin Redish, a distinguished liberal Constitutional scholar, who wrote in The New York Times (before the pardon) that, if President Trump went ahead with the pardon, he would be betraying his duty to uphold the Constitution because he’d be encouraging behavior that would deprive some people of their Constitutional rights. Redish believed that the sheriff, by singling out Hispanics in his search for violators of our immigration laws, was wrongly engaging in forbidden “racial profiling.” Redish was, of course, assuming that Arpaio had engaged in unconstitutional conduct, and that was also the conclusion of the federal judge who found the sheriff guilty of contempt of court, the offense for which he was pardoned.
Redish claimed that the presidential pardon power ought to be subject to judicial review, and held unconstitutional if a pardon would have the effect of condoning interference with someone else’s constitutional rights (here the Hispanics who were “racially profiled”). Redish admitted that his argument was “novel,” and so it is, since the pardon power has never been held to be subject to judicial review. Moreover, it is hard to imagine anyone convicted of a criminal violation whose victim has not, after all, suffered the deprivation of some constitutionally-protected right (given that the Fifth Amendment, on which Redish relied, forbids all deprivations of life, liberty, or property without due process, and surely every criminal act involves something of that sort). In short, Redish’s argument obliterates the pardon power.
This isn’t rocket science. The pardon power might seem to conflict with the rule of law, in the sense that it overrides a judicial decision. But there’s really no conflict, since the pardon power is a safety value for those cases where the law’s machinery will work an injustice. And the conviction of Joe Arpaio is one such case.
Arpaio was prosecuted not for breaking the law so much as for enforcing it, in a politically incorrect manner. He saw what illegal immigration had done to crime levels in Arizona and tried to stop it. That made him a big fat target for pro-amnesty liberals in Obama’s Justice Department. The narrow legal question on which he was convicted was whether a state sheriff could detain suspects who have violated federal but not state law. By enforcing federal laws that the federal government wanted to ignore, Arpaio was embarrassing Obama, who sent his minions to prosecute the sheriff for contempt of court, a most unusual offence. In sum, it was a political prosecution that cried out for a pardon.
If one president refuses to enforce federal law, and prosecutes a state official who does enforce it, there’s nothing wrong with a subsequent president who was elected on a platform to enforce the law pardoning that state official.
As well, Arpaio is an 85 year-old man, an army vet with a wife who is battling cancer. Obama pardoned drug dealers who had profited from their crimes. He released prisoners from Guantanamo who went on to kill Americans. Arpaio didn’t make a dime from enforcing the law, and he did it to protect Americans, not put them in danger. Arpaio also maintained that this contempt citation was itself invalid, since Arpaio claimed that he had no intent actually to disobey the judge’s order (the argument that his lawyers were making on appeal, which was halted in the wake of the pardon).
The executive has always had a pardon power, for just such cases. One of the brilliant paradoxes of our Anglo-American common law and constitutional system is that it contains within itself the potential, in the interests of justice, to nullify itself. In other words, it’s always been understood that the pardon power is about tempering procedure with mercy, to insert an element of forgiveness and humanity into the regular workings of the system.
The entire episode was nevertheless useful insofar as it flushed out the legal adepts who are quick to employ spurious arguments to advance a political agenda. It also permits one to observe how the anti-Trump Republicans strangely and eagerly attack a president from their own party who does the decent thing.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.
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