Statement of the New York City Bar Association Regarding President Trump’s August 25, 2017 Pardon of Sheriff Joe Arpaio

The New York City Bar Association expresses its deep concern over President Donald J. Trump’s decision to pardon Sheriff Joe Arpaio. That pardon undermines judicial authority, the rule of law and the delicate constitutional separation of powers, by diluting the certainty of the judiciary’s power to punish criminal contempt of its orders, and by endorsing and protecting a public servant’s willful and illegal disregard of court orders directing him not to violate constitutional rights of members of an under-protected minority group.

On July 31, 2017, Mr. Arpaio, the Sheriff of Maricopa County, Arizona from 1993-2016, was convicted in federal court of criminal contempt of court, following an earlier citation for civil contempt by a different federal judge. He was not convicted for “doing his job,” as has been suggested, but for willfully and continuously refusing to follow a prior court order enjoining him from detaining Latinos and violating their civil rights based solely on the belief that they are in the country illegally.  The President’s pardon stymies the judiciary’s capacity to enforce its orders, and amounts to presidential support for the sheriff’s determination to refuse to be governed by the law as determined by a district court and an appellate court.

The President unquestionably has broad legal authority to grant pardons that inherently intrude into the judicial branch, even pardons of criminal contempt of court orders. See Ex Parte Grossman, 267 U.S. 87 (1925) (recognizing that the pardon of a criminal contempt finding against someone who sold alcohol during Prohibition raised particular legal and policy concerns, but declining to find the pardon outside the bounds of the President’s constitutional pardon power). The Arpaio pardon poses extra concern regarding the separation of powers and the rule of law because it endorses a public official’s willful disobedience of a federal court’s explicit order issued to protect members of a minority group from that official’s lawless deprivations of their constitutional rights. As issued by a President who has previously made multiple attacks on judges that properly have been broadly criticized – one a personal insult to a judge with whom the President disagreed and the other an improper suggestion that a judge’s ethnic background disabled him from presiding fairly over a dispute regarding a Trump business enterprise – the pardon appears to reinforce a highly worrisome pattern of unconcealed presidential disdain for the judicial branch and the critical role it plays as final arbiter of applications of the law.

The broad nature of the constitutional pardon power does not mean that a President should use it intemperately or unwisely. Past Presidents have taken the step of overruling or otherwise intervening in the outcome of the criminal justice process only after concluding that unique considerations of humanitarianism, national interest or other overarching perspectives warranted setting aside the results of the criminal process. Other factors considered by Presidents evaluating whether to issue a pardon, as described in guidance by the Department of Justice, include the defendant’s remorse; exhaustion of other forms of relief; post-conviction rehabilitation; passage of time; seriousness of offense; the need for relief; and the recommendations of others involved in the matter, particularly the U.S. Attorney who prosecuted the underlying charges.  Pardons have consistently been supported by an evaluative process before the President announced the decision. 

Here, by contrast, a public official refused to adhere to his oath to uphold the U.S. Constitution, repeatedly scoffed at explicit court orders prohibiting his conduct, and has displayed no remorse whatsoever. He was only recently convicted and awaiting sentencing that was to take place in October, in which the court could take into consideration any humanitarian factors that it considered appropriate (including his age). He had not yet begun the appeal process, and he has since moved for dismissal and requested that his conviction be vacated.  Most significantly, the President has made clear that his central reason for granting the pardon is that he fundamentally supports the actions Sheriff Arpaio took in open defiance of court orders. 

This pardon carries the further implicit message that the President, only seven months into his term, may not hesitate to act again to overrule impositions of criminal liability for willful disregard of the law by government officials, so long as the particular illegal action giving rise to that liability advanced (however unlawfully) an interest that the President shares. That message threatens diminished respect for the importance of adhering to the law, and diminution of the essential authority of the judiciary to declare what the law is and to direct punishment for those who violate its orders.

More than ninety years ago in Ex Parte Grossman, the Supreme Court indicated in confirming a President’s broad pardon power that such power was part of a system of checks and balances carrying both theoretical limits and potential for abuse. The Court said, “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it.”  Id., 267 U.S. at 120-21. (Emphasis added.) Here, the President’s early pardon in explicit support of conduct defying court orders and violating the constitutional rights of Latinos is at odds with the balance at the heart of the Supreme Court’s decision, and with the rule of law.