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Is It Legal for Trump to Pardon Sheriff Joe Arpaio? We Investigate.


Last night, President Trump pardoned Sheriff Joe Arpaio, and since then, our impeachment-o-meters have jumped to ten. Hard as it may be to cope with outrage fatigue over our president’s almost-daily offenses, those on tyranny-watch will tell you that this one stands alone in both its clarity and its gravity.

First, a little background on who Arpaio is and what happened with him:

85 year-old “Sheriff Joe” had been the sheriff of Maricopa County, Arizona, for 24 years. He was something of a folk hero for conservatives, primarily due to his loose relationship with his obligation to follow the law when it came to disfavored groups of people. Among Arpaio’s more notable accomplishments were running a prison that was called a “concentration camp” due to its extraordinarily high death rates, ridiculing, demeaning and mistreating inmates at every opportunity, and then arresting reporters who covered the stories. Arpaio’s office also failed to investigate hundreds of sex abuse cases. One of my favorite Arpaio moments was that time when he staged an assassination attempt against himself to help his poll numbers (I kid you not. Here’s the story.)

For all of his appalling behavior, Arpaio reserved the most energy for hating immigrants – a trait that led to Donald Trump’s becoming positively smitten with the sheriff.

What crime was Arpaio convicted of?

Arpaio and his policies were the subject of many lawsuits. One such suit involved litigation brought by the ACLU in 2011 accusing Arpaio of violating the law by detaining undocumented immigrants simply for lacking legal status. In that case, Judge G. Murray Snow issued a preliminary injunction that ordered Arpaio to stop his practice of running warrantless police sweeps for the sole purpose of finding undocumented immigrants. The court ruled that the practice was unconstitutional and ordered Arpaio to stop it immediately. Arpaio, ever the independent spirit, simply ignored the order and continued his practices. The law caught up with him, and in July 2017, Arpaio was convicted of criminal contempt of court for willfully and intentionally violating Judge Snow’s injunction.

This is a good time to point out two things. First, the contempt case against Arpaio was not an example of a judge becoming angry with an unruly litigant, as goes the plot in so many TV law shows; Arpaio was tried and convicted in a different court, by a different judge. Judge Susan Bolton found Arpaio had violated the federal court order intentionally, had directed his subordinates to continue his illegal practices, and worst of all, that Arpaio had publicly announced his intention to flout the injunction. Second, the issue in the Arpaio contempt case is not what legal policy regarding undocumented immigrants should be, or even what the Constitution demands for such people. Those are complex questions with lengthy answers. But the issue for Arpaio was simple: a federal court ordered him to stop, and he just kept going.

Is a conviction for criminal contempt the same thing as a regular conviction for a regular crime?

Yes. It’s a crime under Federal Rule 42. Criminal contempt is a misdemeanor punishable by up to six months in jail. Arpaio’s sentencing had been scheduled for October 5th of this year.

Does President Trump have good legal authority to issue Arpaio’s pardon?

Probably. While the Arpaio pardon lacks even a hint of good sense, it doesn’t appear to violate the law. Article II, Section 2 of the United States Constitution provides:

“The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

At least in the plain Constitutional language, that power seems essentially unlimited – an analysis I’ve done before with respect to Trump’s plans to pardon himself if the need arises.

So why is the legal community getting all hot and bothered about the Arpaio pardon?

One word: tyranny. And I’m not being hyperbolic here. Our government was planned with avoidance of tyranny as Priority Number 1. The judiciary has the final word on interpretation of laws, and when a court issues an order, those orders are to be followed. The idea that presidential policy could circumvent the entire judicial process is not one the framers had in mind. A president who seeks deprive people of Constitutional rights by cutting the judiciary out of the equation of justice is one that has gone far beyond the bounds of what our Constitution allows.

Constitutional law professor Martin H. Redish of Northwestern wrote an op-ed in The New York Times about the Arpaio pardon, suggesting that it could function to finally limit the scope of the presidential pardon power:

“The Fifth Amendment’s guarantee of neutral judicial process before deprivation of liberty cannot function with a weaponized pardon power that enables President Trump, or any president, to circumvent judicial protections of constitutional rights.”

Because granting such a pardon necessarily conflicts with the due process rights, Professor Redish argues, the Arpaio pardon would be improper as a matter of Constitutional Law.

Other legal experts, such as Harvard Law Professor Noah Feldman, have gone even further – and declared the Arpaio pardon as clear grounds for impeachment:

“Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.”

Professor Feldman’s true statements are all the more disturbing when considered in context. In an effort to appear reasonable, many Trump supporters have explained that they may not love the man himself, but that they support him because he will appoint conservative federal judges. But under this  Trump administration, it wouldn’t matter if he packed all the federal courts with card-carrying members of the ACLU – not if he’s going to just ignore whatever decisions that threaten his executive policy.  The absurdity of supporting a leader who creates a judiciary you like, but then simultaneously destroys that same judiciary is a political reality that could only exist in 2017.

Last night’s pardon for Sheriff Joe isn’t, of course, the first time our president has demonstrated contempt for the judiciary. Trump’s now-famous “so-called judge” tweet in February was a clear warning that he’s not all that impressed by the authority of those in robes. I guess in 45’s mind, orange really is the new black.

For his part, it seems that Sheriff Joe isn’t satisfied with just a presidential pardon. He’d like some more help.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos