Could Joe Arpaio Break the Presidential Pardon?

 In Politics

Joe Arpaio is back. Today, a federal judge will hear arguments in the continuing case of United States v. Joseph M. Arpaio—the case in which President Donald Trump issued his first presidential pardon. To many people, it might be strange to realize the case is continuing at all. Normally, a pardon is the end of a criminal case, or an epilogue. But the controversial sheriff of Maricopa County, Arizona—convicted of criminal contempt of court—has decided to try to clear his name, asking a court to vacate his original conviction entirely. (Normally, a pardon protects the pardoned person from punishment, but leaves the fact of the conviction on the books.)

Arpaio might indeed get his record wiped clean. But in asking a court to vacate his conviction, Arpaio is inviting another possibility as well: that the court will decide his pardon was not valid in the first place. If that happens, the Arpaio pardon would mark a new development in the law: judicial willingness to limit the presidential pardon power itself.

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For a long time, the conventional wisdom has been that a President could grant a pardon for any reason, and that a presidential pardon for a federal crime could not be challenged in court. But that view of the pardon power is not stated anywhere in the text of the Constitution. Article II, Section 2 says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It doesn’t say “…and any pardon the President grants is absolute and unreviewable.”

Rather than being a rule stated in the Constitution, the assumption that presidential pardons can’t be overturned by courts is a matter of longstanding convention.

There are reasons why such a convention is attractive: A pardon is an act of mercy, and there is something dissonant about picking apart acts of mercy in the courtroom. But treating the pardon power as absolute also has downsides, because any absolute power can be exercised irresponsibly. The convention, therefore, is partly built on the judiciary’s confidence that Presidents exercise the pardon power responsibly—or at least that whatever abuses occur are within tolerable bounds.

So for the courts to deem a pardon invalid would be a departure from convention. But the Arpaio pardon itself is highly unconventional, maybe sufficiently so to make the courts doubt that we are still in the realm of either responsible uses of the pardon power of even tolerable abuses of it.

One of the unusual things about the Arpaio pardon is that the crime for which Arpaio was convicted isn’t based on a statute. It arises directly from the Constitution. In prior proceedings, federal courts ordered Arpaio to cease a set of unconstitutional racial profiling practices that the U.S. Department of Justice identified as the worst in American history. Arpaio was then convicted of criminal contempt when he refused to comply with those court orders. In other words, Arpaio systematically violated the constitutional rights of large numbers of individuals, and he was then prosecuted and convicted for persisting after the courts told him to stop. So by pardoning him, Trump did not merely forgive an offense against a federal statute: He forgave a refusal to respect rights guaranteed by the Constitution.

It’s impossible to know what the Arizona judge will decide in Arpaio’s case, but there are already indications it’s being treated as something of a big deal. Rather than granting or denying the request, the court scheduled an actual oral argument. That’s not normal, and it’s something a court would only do if it thought there was a serious issue to work through. Public-interest groups have filed amicus curiae briefs arguing that the court should invalidate the underlying pardon–which won’t necessarily sway the judge’s action, but do put the issue formally on the table.

What little case law exists on the limits of the pardon power seems to recognize a distinction between pardoning offenses against statutes passed in the general public interest and pardoning offenses against the rights of particular individuals. In his opinion for the Court in Ex parte Grossman, a 1925 decision upholding a pardon in a criminal-contempt case, Chief Justice (and former pardon-power wielder) William Howard Taft noted that the petitioner had been convicted of violating a statute passed to vindicate a general public interest—the National Prohibition Act—rather than of doing anything that violated the rights of some discrete other person.

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