Justice Brennan once wrote that one of the most important roles of the courts “is to provide a formidable bulwark against governmental violation of the constitutional safeguards” of our democracy. President Trump’s Friday night pardon of former Maricopa County Sheriff Joe Arpaio is a striking example of how little he understands – or cares about – this core responsibility.
The pardon follows Arpaio’s conviction this summer for criminal contempt, for violating a 2011 federal court order to halt illegal detainment practices.
Some of the commentary following the pardon has argued that Trump’s pardoning of Arpaio is extraordinary because Arpaio did not merely commit a crime, but ignored a court order, signaling a monumental rejection of the rule of law. But presidential pardons from contempt convictions used to be relatively common, and may be reasonable at times, for instance, if a court abuses its power. Indeed, a 1925 Supreme Court decision, Ex Parte Grossman, holds that the President can lawfully pardon someone convicted of violating a court order.
Instead, what makes this pardon remarkable are the facts underlying the 2011 court order. The court found that Arpaio violated the constitutional rights of his constituents. Specifically, his office was violating individuals’ Fourth Amendment rights by detaining persons without any evidence they had committed a crime in order to hand them over to U.S. Immigration and Customs Enforcement. Despite that court order, Arpaio bragged publicly that he wouldn’t change his office’s practices and detained 171 more people without justification.
Compare this to that 1925 case in which the Supreme Court upheld President Calvin Coolidge’s pardon of Philip Grossman, a Chicago bootlegger during prohibition. A federal court had ordered Grossman to shut down his illicit liquor sales, and the court held Grossman in contempt for ignoring that order. Grossman was a private individual violating the controversial Volstead Act, not a public official violating the constitution.
Even in the Grossman case, Coolidge commuted only Grossman’s prison sentence and required him to pay the court-determined fine. Trump didn’t even wait to find out Arpaio’s sentence before handing down his pardon.
This is also not the first time that Trump has shown hostility for courts when they are fulfilling their role as a bulwark of constitutional rights. In fact, since taking office, Trump has reserved his fiercest attacks on courts for those protecting constitutional rights.
The day after a federal judge in Washington State stopped the President from enforcing his “travel ban,” the executive order limiting immigration from seven predominantly Muslim countries and halting the admission of refugees, which plaintiffs challenged on the basis that it violated the First and Fifth Amendments of the Constitution, Trump attacked the judge. He even preemptively blamed the judge for any future terrorist attack:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!— Donald J. Trump (@realDonaldTrump) February 4, 2017
Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!— Donald J. Trump (@realDonaldTrump) February 5, 2017
In April, he did the same after a federal judge sitting in California ruled that the President’s executive order aimed at so-called “sanctuary cities,” which would withhold federal funds from jurisdictions that decline to assist the federal government in identifying and detaining undocumented persons, violated several provisions of the Constitution. Then, the White House issued a statement repeatedly disparaging the “unelected judge,” and again blamed the judge for future crimes, saying the “ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk.”
To be sure, before becoming President, private-citizen Trump was willing to criticize courts in plenty of other contexts, from calling for Justice Ginsburg’s resignation, to claiming that the judge overseeing a lawsuit against Trump University was biased by his “Mexican heritage,” to criticizing Chief Justice John Roberts for not doing “the right thing” when he upheld the Affordable Care Act.
But, as President, Trump has reserved his fiercest attacks for courts defending constitutional rights.
It’s extraordinary for a president to use the pardon power when a court determined that Arpaio’s practices violated the constitution and that Arpaio willfully ignored the court’s instructions. Unless, of course, you’re Donald Trump.