Meryl Chertoff is executive director of the Aspen Institute Justice & Society Program. The views and opinions of the author are her own and do not necessarily reflect those of the Aspen Institute.
If President Trump uses today’s rally in Phoenix to pardon former Maricopa County Sheriff Joseph Arpaio of a federal criminal contempt conviction, he will have gravely damaged the powers of federal courts to enforce the law of the land and set a dangerous precedent.
The crime of contempt of a federal court is different than the many substantive offenses that are generally the subject of presidential pardons. Fraud, drug trafficking, and racketeering are all federal offenses, and some who have committed them have been granted presidential pardons during past administrations. Criminal contempt is different: It is an offense against the federal courts themselves. The act being punished by a federal criminal contempt conviction is the refusal by an individual, and in Arpaio’s case by a high state public safety official, to carry out a lawful order issued by a federal district court. Given that, such a pardon is a direct challenge to the authority of the federal courts to judge when someone has violated the court’s own directives.
The presidential pardon power is extremely broad. While it might seem that the pardoning of a criminal contempt charge violates the separation of powers, and diminishes the independence of the courts, such power has been recognized since a 1925 Supreme Court ruling written by the only chief justice who had previously been president: William Howard Taft. The case was Ex Parte Grossman. Philip Grossman was a Chicago bootlegger convicted of violating Prohibition-era laws by operating a speakeasy. He persisted in his illegal occupation and was jailed for criminal contempt. President Calvin Coolidge pardoned him, and the Taft Court unanimously agreed that the president’s power to pardon included the power to pardon criminal contempt. It recognized, though, that in granting such a broad ambit, it was opening the door to its abuse, observing:
It is said that the President, by successive pardons…might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President. (267 US 87, 122)
Compare the unfortunate bootlegger trying to make an illegal buck off the boozing habits of others with the case of Sheriff Arpaio. A hero of national anti-immigration forces and an early endorser of President Trump, Arpaio was found guilty by a federal trial court judge of willfully violating a federal court order by allowing racial-profiling roundups of suspected undocumented immigrants. His sentencing is set for October 5. The president’s public musings that he might pardon Arpaio when he goes to Arizona today set off a firestorm of outrage, coming on the heels of his remarks on the Charlottesville white-supremacist violence. Would a pardon of Arpaio be the kind of abuse the Taft Court considered in Grossman? Probably not yet. But combined with the president’s remarks on his unlimited pardon powers in reaction to the Mueller Russia investigation, Trump seems to be straying into dangerous territory.
The prospect of a pardon for Arpaio also brings to mind some of the worst moments of Southern defiance of federal authority in the civil rights era. When Governor Orval Faubus refused a federal court school integration order, President Eisenhower sent in the 101st Airborne in aid of the Little Rock Nine. Time and time again during that period, the orders of federal courts were implemented, if necessary with the aid of federal law enforcement. The requirement that state politicians, police, and public safety officials comply with lawful court orders — which can properly be contested by appealing them — is an essential element of the rule of law, and its defiance is certainly something a president should be loath to pardon.
If indeed the president carries out his threat today, civil contempt — a financial sanction — remains available to the federal court. That cannot be pardoned by the president. And state courts will need to step up and take a more active role in enforcing the federal rights of people living inside their states. But the president will have dealt a serious blow to the ability of the federal judiciary to carry out its Constitutionally recognized role as a check on the executive branch.