I am grateful to reader Chris Tucher for drawing my attention to an article in the Daily Journal in which Dean Erwin Chemerinsky of UC Berkeley Law School contends that the Arpaio pardon might be invalid. He argues that, by pardoning Arpaio for criminal contempt of court, the president interfered with the ability of courts to enforce their own judgments and thus undercut a fundamental component of judicial authority, which in turn violates the basic constitutional principle of separation of powers.
[The Daily Journal article appears to be behind a paywall. But you can hear Chemerinsky make his argument on a podcast at this link https://soundcloud.com/thenationmagazine/erwin-chemerinsky-why-trumps-pardon-of-joe-arpaio-is-outrageous?platform=hootsuite ]
Although Dean Chemerinsky couches this as a separation of powers issue, it is essentially the same argument made by Professor Martin Redish, who contends that the Arpaio pardon violates the due process clause of the 5th Amendment. I’ve responded to Professor Redish and won’t repeat my argument here. I don’t think Dean Chemerinsky, prodigious scholar though he is, adds much to the debate. Indeed, his argument seems to me weaker than Professor Redish’s.
An argument from separation of powers is an argument about the fundamental distribution of authority between the co-equal branches, a distribution set by the original constitution in 1787. It is profoundly implausible to suggest that the framers did not understand that conferring upon the president the power to pardon all federal offenses except impeachments had the effect of limiting judicial authority in some cases. That, after all, is the point of pardons. It is also implausible to suggest that the framers, many of whom were eminent lawyers, did not understand that among the things a president might pardon would be criminal contempts of court.
Moreover, the constitutional scheme is not one of strict separation of the powers and functions of the three branches, but is instead one in which the powers characteristic in each branch are often limited by a corresponding grant of authority to another. In short, the “checks and balances” of high school civics. Presidential pardons are, by design, a check upon the occasional excesses and misjudgments of the judiciary. There is no indication that the framers thought that judges were less prone to error in finding people in contempt than in rendering judgments for other crimes, or that judges should be given a veto of presidential pardon authority in the special case of criminal contempts. (Nor is there any indication that conditions have changed since 1787 in any way that would oblige us to revisit the framers’ original calculus on this point.)
Professor Redish, at least, recognizes the difficulty in arguing that the men of Philadelphia did not understand, and intend, what they themselves wrote. He attempts to circumvent it by arguing that the Arpaio pardon violates, not the original constitution of 1787, but the later-enacted due process clause of the 5th Amendment. As I explain in my previous post, I respectfully disagree with this position, but it at least avoids the absurdity of suggesting that the framers didn’t understand how pardons work, what they can be used for, and how the president’s pardon power fit into their own scheme of checks and balances. Dean Chemerinsky’s position runs aground on that absurdity.
I am nonetheless grateful to Dean Chemerinsky for drawing attention to a Supreme Court case — Ex parte Grossman, 267 U.S. 87 (1925) — that settles the question. In Grossman, the U.S. Supreme Court flatly and unequivocally holds that a president may pardon a criminal contempt and doing so does not violate separation of powers. I am somewhat chagrined that I hadn’t seen the case before, but my mild embarrassment is outweighed by the fact that it upholds the position I’ve been arguing in favor of for days.
Dean Chemerinsky’s response to Grossman is simply to say that he doesn’t agree with it. Despite his eminence, that’s not enough to overcome the plain pardon language of Article II, Section 2, and the unequivocal holding of the U.S. Supreme Court.
Of course, the fact that Mr. Trump had the constitutional power to issue pardons of criminal contempts means only that that the Arpaio pardon cannot be judicially overturned. It says nothing at all about whether the Arpaio pardon can properly form the basis of an impeachment proceeding. As I’ve said repeatedly, the primary purpose of impeachment is removal of officials who misuse the powers the constitution conferred upon them. And abuse of the pardon power, as James Madison himself recognized, is an impeachable offense.