On August 25, 2017, President Trump granted a Presidential pardon to Joe Arpaio, the former Sheriff of Maricopa County, Arizona. While the statement does not address the scope of the Presidential pardon, the context of Arpaio’s recent offense and criminal conviction is critical to inform the purpose and effect of this pardon.
Ortega Melendres v. Arpaio
In 2007, the ACLU filed a class action suit against Maricopa County Sheriff’s Office (MCSO) and Sheriff Joe Arpaio in his official capacity. The suit alleged that MSCO engaged in racial profiling and arrested individuals without probable cause as to their immigration status. The ACLU stated that “the policies and practices of Arpaio and the county are discriminatory and unlawfully violate the Fourth and Fourteenth Amendments to the U.S. Constitution, Title VI of the Civil Rights Act of 1964 and the Arizona Constitution.” Read the petition.
Essentially, an warrantless arrest made without probable cause violates the Fourth Amendment protections against unreasonable seizure. An officer has probable cause when the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant an objective belief that the suspect has committed or is committing a crime for which arrest is authorized law. A suspicion based on the racial appearance of an individual is not a reasonably trustworthy fact that the individual is unlawfully in the country or guilty of any other offense. MCSO routinely committed stops and arrests of individuals only based on such racial profiling, which is less that the probable cause standard required by the Constitution.
At the Arizona Republic, JJ Hensley reported that in December of 2011, U.S. District Judge Murray Snow granted a class certification allowing “every Hispanic stopped, questioned, or detained by the Sheriff’s office since January 2007 standing” in the suit. Judge Snow also issued an injunction that “barred all sheriff’s officers from arresting any person ‘only on the knowledge or reasonable belief, without more, that the person is unlawfully present within the United States.”
The case went to trial in 2012. In May of 2013, Judge Snow found that MCSO’s office had engaged in racial profiling and issued sweeping reforms to the office. Read the decision. On April 15, 2015, the Ninth Circuit affirmed the ruling and found all reforms appropriate.
However, Judge Snow scheduled a civil contempt hearing against Arpaio for the alleged continuation of immigration enforcement without probable cause for 18 months after the issuance of the December 2011 injunction. After this hearing, on May 13, 2016, Judge Snow found Arpaio in civil contempt of the court order. Read the decision.
At AZCentral, Megan Cassidy reported that Judge Snow then referred the case for a criminal contempt hearing, and federal prosecutors chose to prosecute Arpaio on the injunction violation. The case was prosecuted in the U.S. District Court for the District of Arizona. On July 31, 2017, U.S. District Judge Susan R. Bolton found Arpaio guilty of criminal contempt, finding that Arpaio willfully violated the December 2011 order. Read the verdict.
In sum, Arpaio was convicted of civil and criminal contempt of court by violating an injunction that prevented him, in his official capacity, from racially profiling individuals in a manner that violated the Constitution. However, as the Supreme Court held inEx parte Grossman, pardons only apply to criminal offenses, so Arpaio is only pardoned for the criminal contempt conviction.
Can the President pardon Arpaio for these offenses?
As detailed in the Powers of the President page, the President has broad powers to pardon individuals. The only limitation provided in the Constitution is that the President cannot pardon in the case of impeachment. See Article II, Sec. 2. This broad, nearly unlimited authority has never been successfully challenged in the Supreme Court.
However, some scholars identified a potential conflict with this particular pardon that warrants a more scrupulous analysis of the unintended consequences of such a broad pardon power.
Arpaio was a government official who, like many officials, swore an oath to uphold the Constitution, and yet he violated it. After this pardon, Arpaio will not be held criminally accountable for violating the Constitution. If the President has the authority to pardon government official who violate the Constitution, then there is no incentive for any official to adhere to the Constitution. This is a fatal flaw – the Achilles heel so to speak. A president can shape a government that operates outside the Constitution and shield them from both the judicial and legislative branches. This is certainly an extreme example, but it illustrates a scenario that falls entirely outside the scope of what the Framers intended.
At the New York Times, Martin H. Redish, a professor of constitutional law at Northwestern, illustrates the intention of the Framers as “obsessed” with the need to prevent tyranny. The creation of judicial review was a crucial check against an unfettered executive. Due process protects individuals from unlawful detention, because courts have the power to restrain government officials from doing so. Courts have the power to issue an injunction against an official to prevent him or her from violating the Constitution. Redish poses that the principles of judicial review and due process, embodied in the Fifth Amendment, must inform the interpretation of (and limit) the executive pardon power.
[O]n its face the pardon power appears virtually unlimited. But as a principle of constitutional law, anything in the body of the Constitution inconsistent with the directive of an amendment is necessarily pre-empted or modified by that amendment. If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation.
In other words, if the President can pardon any official who violates the Constitution, the courts will “lose any meaningful authority to protect those constitutional rights.” Judicial review will no longer check the Executive Branch. Due process will no longer protect the individuals. To prevent the outrageous scenario of a shadow government operating outside of the Constitution, or to merely read the Articles in light of the Amendments, the pardon power must be limited by the Fifth Amendment. The president must be able to use his pardon power for all criminal offenses, except impeachment and violations of the Constitution.
Is there precedent for such a pardon?
There is precedent for a pardon of government officials who violated constitutional rights. At FiveThirtyEight, Amelia Thomson-DeVeaux and Andrea Jones-Rooy identified several precedent presidential pardons that support the Arpaio pardon. In particular, President Ronald Regan pardoned W. Mark Felt and Edward S. Miller, two “former FBI agents who were convicted of conspiring to violate the constitutional rights of antiwar radicals in the early 1970s.”
As reported at the time in the Washington Post, Felt and Miller had authorized government agents to unconstitutionally search the homes of friends and relatives of fugitive members of the Weather Underground, the group that had taken responsibility for bombings at the U.S. Capitol, Pentagon and other government buildings. The Justice Department said that these men had “breached protections of the Bill of Rights,” specifically the Fourth Amendment protections against unreasonable searches and seizures.