Trump’s pardon of Arpaio follows, but challenges, the law

WASHINGTON — President Donald Trump's decision to pardon Joe Arpaio was characteristically unconventional. It came late on a Friday night as a hurricane bore down on Texas. It concerned a crime that some said was particularly ill suited to clemency, and it was not the product of the care and deliberation that had informed pardons by other presidents.

But it was almost certainly lawful. The Constitution gives presidents extremely broad power to grant pardons.

Last month, a federal judge found Arpaio, a former Arizona sheriff, guilty of criminal contempt for defying a court order to stop detaining immigrants based solely on the suspicion that they were in the country illegally. The order had been issued in a lawsuit that accused the sheriff's office of violating the Constitution by using racial profiling to jail Latinos. Arpaio had faced a sentence of up to six months in jail.

[How ex-Sheriff Joe Arpaio wound up facing jail time, before Trump pardoned him]

Trump thus used his constitutional power to block a federal judge's effort to enforce the Constitution. Legal experts said they found this to be the most troubling aspect of the pardon, given that it excused the lawlessness of an official who had sworn to defend the constitutional structure.

Noah Feldman, a law professor at Harvard, argued before the pardon was issued that such a move "would express presidential contempt for the Constitution."

"Arpaio didn't just violate a law passed by Congress," Feldman wrote on Bloomberg View. "His actions defied the Constitution itself, the bedrock of the entire system of government." By saying Arpaio's offense was forgivable, Feldman added, Trump threatens "the very structure on which his right to pardon is based."

It was the first act of outright defiance against the judiciary by a president who has not been shy about criticizing federal judges who ruled against his businesses and policies. But while the move may have been unusual, there is nothing in the text of the Constitution's pardons clause to suggest that he exceeded his authority.

The president, the clause says, "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

The pardon power extends only to federal crimes. Otherwise, presidents are free to use it as they see fit. As the Supreme Court put it in an 1866 decision involving a former Confederate senator, Ex Parte Garland, the power "is unlimited."

"It extends," the court said, "to every offense known to the law."

In a tweet last month, Trump indicated that he had studied the matter in the context of the investigation of ties between the Trump campaign and Russia. "All agree the U.S. president has the complete power to pardon," he wrote.

Trump could pardon any of the subjects of the special counsel's Russia inquiry, though some legal specialists believe he could increase his risk of prosecution if he were seen as abusing his pardon power.

Were Trump to announce that he had pardoned himself, impeachment would remain possible. A prosecutor might also test the limits of the pardon power by indicting Trump notwithstanding such an announcement. That clash could lead the Supreme Court to weigh in on the limits of the president's power to spare himself from punishment for criminal wrongdoing.

Most presidents wait for the waning days of their administrations to issue high-profile pardons of associates and supporters. President George Bush was about to leave office in 1992 when he pardoned Caspar W. Weinberger, a former defense secretary, for his role in the Iran-Contra affair. President Bill Clinton, too, was almost out the door in 2001 when he pardoned Marc Rich, a fugitive financier whose former wife had donated to the Democratic Party and the Clinton library foundation.

Trump took a different approach. The Arpaio pardon was the first of his presidency.

P.S. Ruckman Jr., a political scientist and an authority on presidential pardons, said Trump's decision to grant clemency to a prominent political ally seven months into his presidency sent the wrong message.

"Hundreds of persons have applied for clemency and have waited for years, some for 10 or 15," he wrote on the Pardon Power blog. "Imagine how demoralized they must feel now. Now, more gasoline will be poured on the classic misconception that clemency is only for famous persons, rich people, political supporters, insiders, the 'connected.'"

The Justice Department's Office of the Pardon Attorney, which ordinarily makes pardon recommendations, has an elaborate and lengthy process for considering pardon applications. It generally requires a five-year waiting period, the office's application instructions say, "to afford the petitioner a reasonable period of time in which to demonstrate an ability to lead a responsible, productive and law-abiding life."

The department, moreover, usually recommends pardons only after an expression of remorse.

"A presidential pardon is ordinarily a sign of forgiveness," the instructions say. "A pardon is not a sign of vindication and does not connote or establish innocence. For that reason, when considering the merits of a pardon petition, pardon officials take into account the petitioner's acceptance of responsibility, remorse and atonement for the offense."

Arpaio, who has been anything but contrite, did not submit a formal application. Indeed, he had not yet been sentenced.

The fact that the legal proceedings against Arpaio were still underway posed no obstacle to Trump's ability to pardon him. The pardon power, the Supreme Court said in 1866, may be exercised at any time after a federal crime was committed, "either before legal proceedings are taken or during their pendency or after conviction and judgment."

In 1974, for instance, President Gerald R. Ford issued "a full, free and absolute pardon" to Richard M. Nixon for all federal crimes he had "committed or may have committed" during his presidency. Ford paid a political price for the pardon, which was hotly debated.

The courts, Congress and the public have few avenues to take action against a president who issues a contentious pardon. Legislation, for instance, is not an option.

"This power of the president is not subject to legislative control," the Supreme Court said in 1866. "Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."

Other responses to pardons are at least theoretically possible. One is political: Voters can punish presidents seeking re-election for pardons thought to be an abuse of power, as Ford learned. And presidents are subject to impeachment for "treason, bribery, or other high crimes and misdemeanors."

It was Ford who provided the most widely cited definition of what conduct qualifies. "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history," he said in 1970, discussing an attempt to impeach Justice William O. Douglas when Ford was the House minority leader.

In an opinion article in The New York Times on Thursday, Martin H. Redish, a law professor at Northwestern University, said courts should create a novel exception to the president's otherwise unlimited pardon power for contempt convictions based on violations of constitutional rights.

"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," Redish wrote.