Tag Archives: due process

Dean Chemerinsky, separation of powers, and the Arpaio pardon

01 Friday Sep 2017

Posted by in Uncategorized

≈ Leave a comment

Tags

, , , , , ,

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.

A due process challenge (almost certainly fruitless) to the Arpaio pardon

30 Wednesday Aug 2017

Posted by in Uncategorized

≈ 5 Comments

Tags

, , , , , , , ,

As reported by Jennifer Rubin at the Washington Post, a group called Protect Democracy has argued in a letter to the Justice Department that the pardon of former Arizona sheriff Joe Arpaio is legally invalid as a violation of the due process clause. They adopt an argument first made in the New York Times by Professor Martin Redish. The group contends that:

While the Constitution’s pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.

Similarly, issuance of a pardon that violates the Fifth Amendment’s Due Process Clause is also suspect. Under the Due Process Clause, no one in the United States (citizen or otherwise) may “be deprived of life, liberty, or property, without due process of law.” But for due process and judicial review to function, courts must be able to restrain government officials. Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.

I’m sympathetic to the sentiment.  Indeed, it is precisely because the Arpaio pardon is so corrosive of the constitutional order that I’ve argued that it is an impeachable offense. Nonetheless, trying to invalidate the pardon itself is a non-starter.

Lots of constitutional language is vague or necessarily subject to interpretation in light of unforeseeable events.  The pardon clause is not of that sort. Article II, Section 2 says that the president, “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  That is as plain and unequivocal as any sentence the framers ever wrote. The framers could have written exceptions or qualifications into the constitution’s absolute grant of presidential authority.  They could have made pardons subject to review by the Supreme Court.  Or to override by Congress.  Or something else. They didn’t.  In short, the constitution made the president’s pardon power absolute, with one single exception – matters subject to impeachment.

The Protect Democracy authors contend that the plain scope of the pardon power in the original constitution is somehow limited by the later-enacted provisions of the Bill of Rights, specifically the 5th Amendment’s guarantee of due of process of law.  But just because the Bill of Rights was enacted after the original constitution doesn’t make it a warrant for rewriting any portion of the original constitution that one now finds inconvenient.

Let’s consider the argument for a due process limitation on presidential pardon power:

To begin, because the constitution is America’s fundamental law, in constitutional disputes of this sort, the contestants are necessarily confined to certain forms of argument.

First, one can argue from the text, particularly where the text is ambigous or open-ended.  (Textualism.) But the Article II text defining the presidents’s pardon power is clear and unequivocal.  And the due process clause says nothing whatever about pardons.

Second, one can argue from a combination of textual and extra-textual sources that the framers intended something not obvious from the text.  (Originalism.)  Here the argument would have to be that the authors or ratifiers of the 5th Amendment due process clause intended it to modify the unequivocal pardon language of Article II. There is no evidence whatever for this position.  Indeed, there is not the faintest hint of a suggestion that anyone in the founding generation ever even thought about the pardon power in connection with the due process clause.

Third, one can argue that, while a particular problem now at issue was not contemplated by the framers because technology or physical conditions or social arrangements have changed in ways they could not have anticipated, had they been able to anticipate modern conditions, they would have wanted the constitutional language to cover the problem. (A more elastic originalism.) A classic example is the judicial expansion of the 4th Amendment, which speaks of searching “houses, papers and effects,” to cover electronic communications 18th century politicians could not have envisioned.  But in this case, Mr. Trump’s pardon of Arpaio is hardly something the framers could not have anticipated. Many of them were practicing lawyers.  They understood courts, injunctions, and the power of courts to enforce their own orders. Had they wanted to carve out an exception to the pardon power for criminal contempt convictions, they could plainly have done so in Article II. They didn’t.  And there is no hint that those who enacted the due process clause only a few years later (most of them the same people) had any other view of the question.

Moreover, and this seems to me key, the framers did anticipate that a president might abuse the pardon power, and they provided a remedy: impeachment.  As I discussed in my last post, no less a figure than James Madison made that express point at the Virginia ratifying convention.

Fourth, one can disavow any interest in the intentions of the framers and treat the language of the constitution as a mere framework for an evolving set of rules, norms, and governing principles.  But even the most elastic living constitutionalist cannot (or at least should not) completely ignore what the constitution itself says.  The language of Article II, Section 2 is unequivocal.  To use the vague concept of “due process” to negate the plain meaning of another section of the constitution requires a far more powerful argument than the good folks at Protect Democracy muster.

For example, they assert that if a president were to announce that “he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.”  This is, frankly, remarkably sloppy stuff.  In the first place, merely announcing an intention to behave in a racially discriminatory way does not violate the 14th Amendment.  Moreover, even if the president were to act on his stated intention and begin issuing pardons only to white defendants, that might violate the spirit of the equal protection clause, but that would not invalidate the white pardons. Nor is it plausible to suggest that a court would order the president to start issuing pardons to similarly situated black persons.

Or consider an analogous hypothetical – assume a president announced that he intended to nominate only white cabinet members, and then did so.  Would that be outrageous?  Sure.  Would that violate the equal protection clause?  No.  Because the president’s power of nomination is plenary and not governed by legal rules.  And even if one could construct some contorted argument that the 14th Amendment was violated, what would be the remedy?  Does anyone seriously imagine that courts could order the president to withdraw nominations of the white cabinet officers, or order the president to substitute black ones?

In each of these hypotheticals, the president would be exercising, however deplorably, an undoubted constitutional power.  And in each case, there would be no constitutional mechanism to reverse the exercise of that power in the particular case.  There would be other constitutional remedies — but they are political and rest primarily with the public and Congress and not the courts.  In the second case, Congress could refuse to confirm all or some of an avowedly racist slate of nominees.  In both cases, if the president were in his first term, an outraged public could refuse to re-elect him.  Or Congress could impeach him immediately.

A due process based judicial review of presidential pardons would have to be consistent with the checks-and-balances structure written into the constitution we have. It is not. The pardon power was designed in large measure as an executive check on judicial excesses. It would hardly make sense to give the judiciary a check on that check.  And I can’t imagine how a court could fashion an appropriate standard of review of the pardon decision that wouldn’t give courts the final word on a question expressly, unqualifiedly, reserved to the president.

The real meat of Protect Democracy’s argument is that the due process clause must be read to provide a judicial remedy for every improper executive action.  That is not so. The constitution gives the judiciary the power to effect case-specific remedies for some executive improprieties, but not all.  Sometimes the constitution provides no remedy except political ones.

The Arpaio pardon is scandalous.  But it will stand.  Judges have no power to overturn it. Nonetheless, Congress has the power to remove — to impeach — the man who awarded it.

 

 

Pardoning Arpaio: The first verifiable impeachable offense

26 Saturday Aug 2017

Posted by in Uncategorized

≈ 49 Comments

Tags

, , ,

During the election campaign and in the first eight months of his presidency, Mr. Trump has done a variety of things that, once fully investigated, may prove to be impeachable offenses.  But we don’t yet know all the facts.  Thus, final judgment on those behaviors will have to wait.

Yesterday, by pardoning former Arizona sheriff Joe Arpaio, Mr. Trump committed his first verifiable impeachable offense.  To some readers, this may seem to be frantic hyperbole.  After all, Article II, Section 2, of the constitution gives a president effectively unlimited to power to pardon anyone (possibly even including himself) for any federal crime except impeachable offenses.

Professor Martin Redish argues in the New York Times that this particular pardon ought to be invalid as a violation of the due process clause, because the only effective redress for those whose rights were violated by then-Sheriff Arpaio when he defied the court’s injunction is a contempt sanction, and voiding that sanction both neuters the judicial power to enforce constitutional rights and deprives Arpaio’s victims of relief.  But even Professor Redish admits that this is a novel theory, and with respect, it simply won’t fly. Any time a president pardons someone for a criminal offense, he voids the considered judgment of some court and deprives the defendant’s victim of redress.  The constitution provides no carve-outs for cases where the underlying crime is a deprivation of civil liberties.

That being so, Trump’s defenders will ask how a president can be impeached merely for exercising a power he undeniably possesses? But this question turns the constitutional function of impeachment on its head.

The founders included in the constitution a congressional power to impeach presidents primarily to respond to misuse by the president of express or implied powers given him elsewhere in the document.

It is true that presidents and other officials can be impeached for conduct not involving the exercise of a specific official power if it intrudes somehow into the sphere of public duty. And impeachment can be proper in the case of a heinous private criminal offense which so far undercuts the moral authority and personal credibility of the offender that he can no longer effectively perform his office.

But, to the founders, the main point of impeachment was that there must be a remedy when a president perverts the powers of his office, either for personal or political self-aggrandizement or, regardless of motive, when the president’s acts threaten the proper distribution of authority among the coordinate branches or otherwise offend either law or fundamental governing norms.

The pardon of Arpaio plainly falls within this core conception of properly impeachable offenses.

  • It is an impeachable offense precisely because it involves the exercise of a constitutionally created presidential power.
  • The use of the pardon power in this case is a direct assault on core constitutional rights, statutory civil rights laws of the United States, and on the authority of courts to enforce those laws.
  • It therefore threatens constitutional civil liberties generally, as well as the viability of congressionally authorized statutory law, and it is a direct attack on the constitutional powers of the judiciary as a coordinate branch of government.
  • Accordingly, this pardon threatens to undercut one of indispensable foundational norms of American constitutional order — the rule of law.

One could, of course, make some version of the foregoing argument about many presidential pardons.  Every pardon undercuts a prior judicial decision and vitiates a court’s judgment that the defendant violated a criminal statute and ought to be punished. But here, as elsewhere in the impeachment realm, context and motive matter.

In deciding whether this pardon is impeachable, it matters that its effect (and patent purpose) is to devalue constitutional and statutory protections of a vulnerable minority.  It matters that its effect (and rationally inferable purpose) is precisely to undercut the power of the judiciary to enforce the law against officials who believe they can violate it with impunity.  And it matters that Mr. Trump’s motive in issuing the pardon is so transparently political. This is not a considered judgment that a particular individual has been unfairly treated by corrupt judges, a flawed process, or an unjust law.  It is, instead, a transparent pander to a politician’s political base.

The fact that the constitution grants the president the theoretical power to behave in this way does not deprive Congress of the power to conclude that the exercise of the power is so contrary to constitutional principles and democratic norms that it constitutes an impeachable offense.

As always, sober pragmatism reminds us that no presidential behavior, however egregious, will result in impeachment and removal unless a majority of the House and supermajority of the Senate deem it so, and that the Republicans controlling both houses have so far shown no disposition to take these steps.  The sole point here is that, should that political obstacle ever dissolve, there is now at least one constitutionally sound basis upon which impeachment could be based.