Trump is escalating his attack on the courts into concrete actions
Jennifer Rubin explains one line of argument against Trump’s pardon of Arpaio.
Meanwhile, Protect Democracy, an activist group seeking to thwart Trump’s violations of legal norms, and a group of lawyers have sent a letter to Raymond N. Hulser and John Dixon Keller of the Public Integrity Section, Criminal Division of the Justice Department, arguing that the pardon goes beyond constitutional limits. In their letter obtained by Right Turn, they argue:
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.
Put simply, the argument is that the president cannot obviate the court’s powers to enforce its orders when the constitutional rights of others are at stake. “The president can’t use the pardon power to immunize lawless officials from consequences for violating people’s constitutional rights,” says one of the lawyers who authored the letter, Ron Fein, legal director of Free Speech for People. Clearly, there is a larger concern here that goes beyond Arpaio. “After repeatedly belittling and undermining judges verbally and on Twitter, now President Trump is escalating his attack on the courts into concrete actions,” says Ian Bassin, executive director of Protect Democracy. “His pardon and celebration of Joe Arpaio for ignoring a judicial order is a threat to our democracy and every citizen’s rights, and should not be allowed to stand.”
It seems compelling, doesn’t it. The Due Process clause exists. People have a right to due process. A court found that Arpaio was violating that right. Trump tore that finding up – meaning the right wasn’t enforced. A right is worthless if an authoritarian chief executive is going to prevent courts from enforcing it.
Those challenging the pardon understand there is no precedent for this — but neither is there a precedent for a pardon of this type. “While many pardons are controversial politically, we are unaware of any past example of a pardon to a public official for criminal contempt of court for violating a court order to stop a systemic practice of violating individuals’ constitutional rights,” Fein says. He posits the example of criminal contempt in the context of 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 recalls. “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.”
And that would have been awful.
Erwin Chemerinsky, Dean of UC-Berkeley’s law school and a constitutional scholar, recently published an article proposing another attack on the Arpaio pardon. Essentially, his argument is that Arpaio’s contempt citation was not an “offense against the United States” and that for separation of powers reasons a president shouldn’t be able to undermine the judiciary’s ability to enforce its orders. It’s creative, but I don’t buy it — Chemerinsky himself admits that it’s contrary to existing case law.
And I’m not buying this argument, either. Among other things: Arpaio’s pardon didn’t deprive anyone of due process. He’s no longer sheriff. Convicting him didn’t restore anyone’s rights. Sure, indirectly it might have an effect, because it encourages other law enforcement officials to defy court orders. But by that token, every pardon is potentially unconstitutional. Even if he was still sheriff, the court would have other tools at its disposal, including civil contempt, that are not subject to the pardon power.
There’s so little law in this area that we can all have our theories, and they’re not likely to be tested. But I would be shocked if these challenges went anywhere. Aside from the problem of standing, the Court hates looking political. (Yes, yes, I know. Bush v. Gore. But there was no way the justices could avoid deciding that case, and any decision was going to be viewed as political. And they’re pretty sensitive to the damage that case did to the institution.) And I don’t even mean this in a “the conservative justices will line up in a 5-4 decision” way: I would be shocked if you could get a single justice to vote to overturn this pardon.