If President Donald Trump pardons Joe Arpaio, as he
broadly hinted at during a rally Tuesday in Arizona, it would not be an ordinary exercise of the power -- it would be an impeachable offense. Arpaio, the former sheriff of Arizona’s Maricopa County, was convicted of criminal contempt of court for ignoring the federal judge’s order that he follow the U.S. Constitution in doing his job. For Trump to pardon him would be an assault on the federal judiciary, the Constitution and the rule of law itself.
To see why pardoning Arpaio would be
so exceptional -- and so bad -- you have to start with the sheriff’s crime. Arpaio wasn’t convicted by a jury after a trial for violating some specific federal statute. Rather, he was convicted by a federal judge on the rather unusual charge of criminal contempt of court.
Specifically, Arpaio was convicted this July by Judge Susan Bolton of willfully and intentionally violating an order issued to him in 2011 by a different federal judge, G. Murray Snow.
The order arose out of a civil
suit against Arpaio brought by the American Civil Liberties Union, accusing him of violating the law by detaining undocumented immigrants simply for lacking legal status.
Snow issued a preliminary injunction that ordered Arpaio to stop running so-called saturation patrols -- police sweeps that essentially stopped people who looked Latino and detained those who were deemed undocumented. The basic idea was that the profiling, warrantless stops and detention were unconstitutional.
Yet despite the federal court’s order, Arpaio kept running the unlawful patrols for at least 18 months, and publicly
acknowledged as much.
...
Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’
motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of
Article III judges.
An Arpaio pardon would express presidential contempt for the Constitution. Arpaio didn’t just violate a law passed by Congress. His actions defied the Constitution itself, the bedrock of the entire system of government. For Trump to say that this violation is excusable would threaten the very structure on which is right to pardon is based.
Fundamentally, pardoning Arpaio would also undermine the rule of law itself.
The only way the legal system can operate is if law enforcement officials do what the courts tell them. Judges don’t carry guns or enforce their own orders. That’s the job of law enforcement.
When a sheriff ignores the courts, he becomes a law unto himself. The courts’ only available recourse is to sanction the sheriff. If the president blocks the courts from making the sheriff follow the law, then the president is breaking the basic structure of the legal order.
From this analysis it follows directly that pardoning Arpaio would be a wrongful act under the Constitution. There would be no immediate constitutional crisis because, legally speaking, Trump has the power to issue the pardon.
But the pardon would trigger a different sort of crisis: a crisis in enforcement of the rule of law.
The Constitution isn’t perfect. It offers only one remedy for a president who abuses the pardon power to break the system itself. That remedy is impeachment.