Presidential pardons and the separation of powers

Dean Erwin Chemerinsky asks, was President Donald J. Trump’s pardon of Joe Arpaio a violation of the separation of powers doctrine. He poses the question because the president pardoned Arpaio for a conviction for criminal contempt by the U.S. District Court.

Dean Chemerinsky makes two important points for questioning the constitutionality of pardoning Arpaio from a criminal contempt conviction. First, Article II, Section 2 empowers a president to grant a pardon for offenses against the United States. In Arpaio’s case, the contempt conviction was for his willful failure to comply with a court order. Dean Chemerinsky posits that the president’s pardon of Arpaio might not be in the class of “offenses against the United States” because it is against a federal court and is not regulated by Title 18. While Judge Susan Bolton does not cite 18 U.S.C. Section 401 in her findings, the power of a federal judge to adjudicate a person for criminal contempt is derived from Section 401. Moreover, there should be no question that contempt of a federal judge’s order to comply with an injunction is an offense against the United States.

Second, Dean Chemerinsky poses an important question whether the Supreme Court should reconsider its 1925 ruling that the separation of powers doctrine is not violated by a presidential pardon of a person has been convicted of contempt of a federal court. The question might be more aptly reconsidered in a different case, however. The separation of powers doctrine would be more deeply implicated if the court order was made to force the contemnor to take some action to comply with a federal court order and the presidential pardon relieved the contemnor of an obligation to comply. In such a case, the executive branch would be interfering with the power of the judicial branch to administer justice in a case. In Arpaio’s case, the pardon did not excuse Arpaio from future compliance. He was convicted for his past failure to comply.

As Dean Chemerinsky observes, the stakes are high. I subscribe to the idea attributed to more that one of our noble founders, “The price of liberty is eternal vigilance.” I predict that in the not too distant future we will have occasion to exercise vigilance to ensure that the pardon power is not used to invade the constitutional powers of the other co-equal branches of government.