Presidential pardons and criminal contempt

President Donald J. Trump’s pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz., was outrageous, but was it also unconstitutional? The conventional wisdom is that a president may pardon anyone accused or convicted of a federal crime. Pursuant to Article II, Section 2, of the U.S. Constitution, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

In Ex parte Garland, in 1866, the U.S. Supreme Court declared: “The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” In Ex parte Grossman, in 1925, the court ruled that the president can pardon for the crime of criminal contempt. But notwithstanding these decisions, I think there is a strong argument that it is different when the president is issuing a pardon for violating a judicial order rather than a federal statute.

There is no doubt that Arpaio was rightly held in contempt of court. In 2011, the U.S. Department of Justice concluded that the Maricopa County Sheriff’s Office engaged in a “pattern or practice of unconstitutional policing.” The Justice Department found that Arpaio’s office engaged in racial profiling, including that about one-fifth of the stops of Latino drivers were done without probable cause or reasonable suspicion. The Justice Department said that Arpaio’s office treated every Latino as if he or she was illegally in the United States.

In a lawsuit brought against Arpaio and his department, a federal court in Arizona found that there was a policy of unconstitutional racial profiling and ordered that it cease. Arpaio, though, was openly defiant. After a hearing, U.S. District Judge G. Murray Snow ruled that Arpaio violated the court’s orders. After a further hearing, Snow ruled that Arpaio did so willfully, and consequently found cause to rule that Arpaio should be tried for criminal contempt of court.

The case for criminal contempt then was heard by U.S. District Judge Susan R. Bolton. Bolton convicted Arpaio of criminal contempt for showing “flagrant disregard” of a 2011 court order that he cease racial profiling. Sentencing was to be set this October.

It is deeply disturbing that President Trump would say that Sheriff Arpaio was convicted “for doing his job.” The job of a sheriff is to uphold the law, not to violate the Constitution and judicial orders. I fear that Trump is sending a message to police who violate rights and to those in his administration who are under investigation by Special Counsel Robert Mueller that he will use the pardon power to protect them.

But in this context, I also think that there is a strong argument that the pardon power was used unconstitutionally. Criminal contempt of court is not an offense against the United States within the context and meaning of the pardon clause. The criminal statutes of the United States are found in 18 United States Code. Criminal contempt of court is not among them.

The pardon power was intended to provide a vehicle for lessening the severity of punishment for violations of the criminal code. Alexander Hamilton in Federalist 74 wrote: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

Contempt of court, or for that matter contempt of Congress, has a different basis: They are inherent to the powers of those branches of government. The contempt power is the only way that courts can enforce their orders. When the president issues a pardon for criminal contempt of court, he is interfering with the ability of another branch of government to perform its constitutional duties. A basic principle of constitutional law and separation of powers, often reaffirmed by the Supreme Court, is that one branch of government cannot interfere with the ability of another branch to carry out its constitutional responsibilities.

From this perspective, I think there is a strong basis for concluding that the pardon of Sheriff Arpaio is unconstitutional. Admittedly, the Supreme Court rejected this argument in Ex parte Grossman in 1925. The federal district court and the 9th U.S. Circuit Court of Appeals are obligated to follow this precedent. But as a matter of constitutional law and separation of powers, it is a precedent that the Supreme Court should reconsider. The law of separation of powers — and the principle that one branch of government cannot interfere with the functioning of another — is more clearly established today than it was in 1925.

The stakes here are enormous. Can a president who is so openly contemptuous of the courts undermine their power to enforce their orders? If so, what is left of the rule of law?