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By Ted Folkman of Rubin and Rudman LLP

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The Arpaio Pardon

I’ve read a lot in the news recently about the President’s pardon of former Maricopa County Sheriff Joe Arpaio, who had been convicted of criminal contempt of court. Much of the commentary seems off-base to me, though I share the view of many that the pardon was unjustified. Here, for what it’s worth, is how I see it.

Did The President Have The Power To Pardon Arpaio?

Yes. The Constitution provides that 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, 71 U.S. 333 (1867), the Supreme Court described the pardon power thus:

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. This power of the President is not subject to legislative control. 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.

In Ex Parte Grossman, 267 U.S. 87 (1925), the Supreme Court held that the pardon power extended to cases of criminal contempt of court.

So I disagree with Professor Redish’s view that the nature of Arpaio’s crime—contempt of an order that related to constitutional rights—suggests that the President might lack the power to pardon it.

Does The Pardon Mean Witnesses Can Flaunt Subpoenas With Impunity?

No. The main way that the courts enforce grand jury subpoenas is by civil contempt. If a witness refuses to obey a subpoena, the court can coerce him to obey, whether by imprisonment or by imposing fines. But these coercive sanctions are not meant to punish but to encourage the contemnor to purge himself of the contempt and to obey the subpoena. A person who is imprisoned for civil contempt isn’t sentenced to a particular term: he holds the key to the prison cell and can free himself by agreeing to obey the subpoena.

Arpaio wasn’t just held to be in civil contempt of a court order. He was found to be in criminal contempt. Criminal contempt is, as the name suggests, a criminal offense. The statute provides:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.

Civil contempt, as just explained, is not a criminal offense. Therefore, it is not within the scope of the pardon power, which extends only to “offenses.” In re Nevitt, 117 F. 448 (8th Cir. 1902).

What about a subpoena from a Congressional committee? My source of information on this is a recent report from the Congressional Resarch Service. Contempt of Congress is a crime that can be prosecuted by the executive branch and is presumably within the scope of the pardon power. But Congress also has the inherent power to hold disobedient witnesses in contempt, and it may do so either to punish or to coerce. Presumably if Congress imposes a coercive sanction, it will not be within the scope of the pardon power. According to the Report, it may even be that a punitive sanction imposed under the heading of Congress’s inherent power is not within the pardon power, though I think that presents a more substantial question. Congress can also bring civil proceedings in the district court, and the district court can order witnesses to comply with subpoenas and impose contempt sanctions to compel them.

So in short, both Congress and the courts have ample power to enforce compliance with their subpoenas, and pardons will not protect witnesses from the coercive reach the courts or Congress. I think that Professor Tribe was just wrong when he wrote:

Is The Pardon Contrary To Department Of Justice Regulations?

Not really. It’s true that the DOJ has regulations regarding the form to be used in pardon applications, the time when applications should be filed, how the Office of the Pardon Attorney should handle applications, etc. But the regulations say expressly (28 C.F.R. § 1.11) that:

The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, section 2 of the Constitution.

So I think it’s easy to be misled by comments like this from Preet Bharara:

Of course, Bharara understands that the regulations are advisory:

Is The Pardon At Odds With The Ideal Of The Rule Of Law?

Maybe. On the one hand, in a sense all pardons, by their nature, are departures from the ideal of the rule of law, because they relieve a defendant or potential defendant from the consequences of a crime, and because the President has sole and unfettered discretion to grant pardons whether or not they are justified. You could look at this as a prime example of the rule of men, not the rule of law, though I think a better way to look at it is to say that the idea of rule of law was never meant to eliminate all discretion, particularly discretion that provides relief from the harsh consequences of the law.

Okay, So Is There Anything Wrong With The Pardon?

Yes. Joe Arpaio is a repugnant figure. He kept detainees racially segregated in a “tent city” he aptly described as a “concentration camp.” He was a leading purveyor of the racist “birther” conspiracy theories about President Obama. He racially profiled Latinos and kept doing it even after a federal court ordered him to stop. Really, there is nothing redeeming about his public career.

As we’ve seen, there was nothing legally wrong with the President’s pardon of Arpaio. But we shouldn’t judge pardons that way. We should ask whether the pardon was justified, whether morally or politically or in some other way. The Nixon pardon, for example, was (many would argue) justified politically in order to bring the Watergate crisis to an end. The mass pardons of draft dodgers who fled to Canada in the Vietnam era was perhaps justified for similar reasons. Many pardons can be justified morally, as an exercise in mercy, or in recognition of a convict’s rehabilitation. But I don’t see any moral or political case for the Arpaio pardon. But that doesn’t mean we should twist what seems to be the pretty clear law about the breadth of the Presidential pardon power to express our disapproval of President Trump’s action.

Ted Folkman

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