Joe Arpaio, President Donald Trump, and the Pardon Power

What a Pair!

Trump says he’s considering pardon for Joe Arpaio by Matt Zapotosky for the Washington Post gives you today’s disgraceful news.* And it’s our jumping off point!

I wrote Pardon! and No Egos at Mark Rubin Writes. Pardon? in June and July, respectively. When I wrote the pieces I really expected President Donald Trump would give his family his first high-profile pardons. No matter, for those pardons will surely follow. For now, the Arpaio pardon raises some interesting issues.

Sheriff Joe Arpaio was sued several years ago.** The suit involved racial profiling. Judge Murray Snow, a U.S. District Judge in Phoenix, held the sheriff and others in civil contempt for violating a court order. Later, he issued an order directing the U.S. Attorney for the District of Arizona to prosecute Mr. Arpaio—Maricopa County voters finally gave the man the heave-ho last November—for criminal contempt, for violating the court order.

On July 31, Judge Susan Bolton, also a federal judge in Phoenix, issued her verdict in the criminal contempt case. Guilty. Whither, talk of the pardon.

Generally, a president’s right to pardon is wide and deep. Federal crimes only. No pardons to avoid impeachments. Before or after a conviction, with or without charges ever being brought. Stop.

Maybe. The U.S. Supreme Court decided Ex parte Grossman, 267 U.S. 87, in 1925. Philip Grossman sold liquor in 1920. The government obtained an injunction, barring liquor sales. Soon after he received the order, “an information was filed against [him], charging that after the restraining order had been served on him, he had sole to several persons liquor to be drunk on his premises.” Arrested. Tried for contempt. Convicted. Fined $1000, and sentenced to the Chicago House of Correction for one year. (Sounds like a not nice place!)

Mr. Grossman knew somebody, for sure, for President Calvin Coolidge pardoned him, subject to paying the fine. (Calvin Coolidge had been president for just less than five months, after succeeding President Warren Harding.) Alas, that decision left two federal judges in Chicago unhappy. Here’s their opinion: U.S. v. Grossman.***

Ex parte Grossman is a unanimous opinion of the Court. It overturns the decision from the Chicago judges. Its author? Chief Justice of the United States William Howard Taft. Yes, the same one who was the last Republican POTUS before Harding and Coolidge.

Chief Justice Taft wrote a cogent defense for the pardon power. He noted the breadth of the authority. He alluded to 27 occasions when presidents pardoned individuals convicted of criminal contempt. And he also observed, about the peculiar nature of criminal contempt charges: “The power of a court to protect itself and its usefulness by punishing contemnors is of course necessary, but it is one exercised without the restraining influence of a jury and without many of the guaranties which the bill of rights offers to protect the individual against unjust conviction.”

All of the foregoing aside, Mr. Grossman violated a federal law, to wit: he sold liquor. His contempt related to ignoring a court order. Not just any court order, though. A court order arising out of what appears to be a clear violation of a federal statute and, at that, a statute mandated by 18th Amendment to the U.S. Constitution.

Contrariwise, the Arpaio case involved civil claims. No underlying crime. Does that fact matter? Probably not, given the way in which Constitutional scholars—not moi, for sure—interpret the pardon power. Maybe, though.

“But wait. There’s more.” (Do I sound like the dude on the late night television ad, selling you something you don’t want or need?) Standing. To effect a pardon, President Trump has to say yes, and so does Mr. Arpaio. So neither one of them will be objecting. And the United States of America won’t be objecting. Judge Bolton could ignore the pardon, sentence Mr. Arpaio to up to six months of jail time, and see what happens. If she doesn’t, though, no one has a cognizable interest in the matter which is sufficient to object to the pardon. No standing.

Stay tuned!

*Apologies for not having much to say of late. I try not to say anything if I’m only repeating what everyone else says. Watch for more food and lifestyle pieces.

**Actually, many, many civil suits named Sheriff Joe and the Maricopa County Sheriff’s Department. Total cost of all of the lawsuits? More than $142,000,000, as of less than a year ago.

***Why two District Court judges? Who knows.