Joe Arpaio’s Pardon as a Problem in Remedies

My Lounge colleague Steve Lubet recently discussed in this space the op-eds published elsewhere by Martin Redish and Noah Feldman concerning President Trump’s pardon of former Maricopa County Sheriff Joe Arpaio.  Arpaio was found to be violating the Constitution by having his deputies conduct “saturation patrols” in which anyone who looked Hispanic was stopped and detained pending an immigration status check, and those believed to be undocumented were arrested and incarcerated.  Enjoined by a federal court to stop these practices, he refused to comply for at least a year and a half, and publicly boasted about it.

Arpaio was recently found guilty of a criminal contempt of the federal court’s injunction, subjecting him to up to six months’ imprisonment and fines.  That is the crime for which the President has pardoned him, stating publicly that Arpaio “kept Arizona safe” and that he was “convicted for doing his job.”

Prof. Feldman argues that this was a precipitous abuse of the President’s pardon power that could support an article of impeachment.  Prof. Redish goes further, arguing that the pardon of a criminal contempt of a federal-court injunction restraining constitutional violations by a public official should be considered beyond the pardon power the Constitution grants, essentially because it violates the separation of powers by invading the inherent power of the federal courts to enforce their own orders and the Constitution itself. 

Without discounting the horror that many have experienced at what the President did and why he says he did it, and leaving aside the political fallout that may result, I’d like to examine Prof. Redish’s creative and thoughtful argument as a problem in Remedies, and consider what recourse may now be left.   I’ll do just that after the jump:

What if Prof. Redish is right?  If he is, then Arpaio’s criminal contempt remains punishable notwithstanding the pardon.  Steve Lubet points out that such punishment is nevertheless unlikely, as the prosecutorial function resides in the Executive Branch, and the Chief Executive just called off (or perhaps more accurately, shot) the dogs.  It’s a fair assumption that the current Attorney General would not hesitate to cut off any effort by a local U.S. Attorney to pursue the issue of whether the pardon exonerated the crime; the Executive’s position is that it did. 

Does anyone else have standing to take up this issue?  Probably not.  We ran into related issues during the pre-Obergefell litigation on marriage equality, when the United States Attorney General and some State Attorneys General declined to defend the constitutionality of marriage and marriage-related laws that were discriminatory, and other parties (generally representatives of legislative factions and state or local officials) stepped in to do so, with fairly limited success.  Moreover, this situation is meaningfully different, focusing as it does on the criminal violation by one individual of a federal injunction directed specifically to him rather than the general validity or enforceability of a particular law or practice.  (Though it does involve an “institutional” injunction aimed at the conduct of an entire Sheriff’s office.)  And even if you did find someone with standing to pursue the issue of whether the pardon eradicated the conviction, a conclusion that it didn’t would still leave the punishment for the conviction subject to the President’s full powers of pardon and reprieve, and thus likely to amount to nothing more than an advisory opinion.  So even if Prof. Redish is right, don’t fit Sheriff Joe for his orange jumpsuit (and Arpaio’s signature pink underwear) just yet.

Standing issues aside, with all respect to Prof. Redish it seems difficult to agree that a pardon of this particular wrong exceeds the pardon power.  To say, as Redish does, that the pardon unconstitutionally invades the federal courts’ irreducible Article III power to enforce their own orders or the Constitution in my view overstates the case.  The crime in question is, as just noted, one individual’s past violation of an outstanding federal court injunction directed specifically to him.  Like all crimes, it has to do with something that the defendant did and completed in the past.  Nothing in the pardon prospectively immunizes Arpaio for anything he might do in the future—though his days of violating the civil rights of others under color of state law are probably over as a practical matter owing to his departure from office; if he discriminates against or falsely imprisons Latinos now, it will probably be as a private citizen. 

Every pardon excuses someone from the criminal consequences of a bad act, frequently a very bad act, and commonly after the actor has been duly tried and convicted in a federal court.  In other words, a pardon usually disrupts the process or results of a regularly conducted judicial proceeding.  Whether that proceeding enforced a legislative enactment or a court order, a pardon usually impinges on another governmental branch's powers.  Applying that point to the instant context, there are plenty of criminal penalties on the books for violations of civil rights under color of state law.  Whether or not it would have been wise, there seems little doubt that the President constitutionally could have pardoned Arpaio had he been convicted of one of these federal crimes.  Those of us who teach (and love) Remedies wrestle with the class every semester over how to understand the difference between a prohibitory injunction (which restrains someone from violating the law in a particular way on pain of punishment for contempt, imposed by a criminal conviction after trial), and a substantive provision of the criminal law (which restrains everyone, or some defined class of regulated persons, from violating the law, on pain of punishment imposed by a criminal conviction after trial).  Yes, there are differences, but they’re a lot more subtle than you might think at first, and don’t really seem to be of the kind that should influence the scope of the constitutional pardon power.

[UPDATE: See my exchange with Steve Lubet in the Comments below regarding some Supreme Court precedent Steve turned up.]

Okay, so what if Prof. Redish is wrong (or, for the reasons discussed above, is right but it doesn’t matter)?  Again, let’s set aside political consequences up to and including impeachment. Nothing about the pardon Arpaio was granted appears to exonerate any future wrong, nor under my understanding of the pardon power could it.  So if he commits federal crimes in the future, nothing (except the fact that Donald Trump is President and Jeff Sessions AG, which is just a particular instance of the timeless political reality of prosecutorial discretion) would stop him from being prosecuted and punished accordingly.  (Would such an exercise of discretion violate the Constitution or amount to an obstruction of justice? As a practical matter, those questions are going to be played out in the Congress and the electorate, not the courts.)

Similarly, nothing about the President’s pardon or the power under which it was granted exonerates crimes defined by state law.  So the State of Arizona is free to haul Arpaio up on charges for his acts within the statute of limitations, including ones he committed in the past.  Again, there are political obstacles—Arpaio seems to be a relatively popular figure in Arizona, and (though I lack any detailed understanding of Arizona politics) in the abstract it is hard to imagine the Maricopa County Attorney (which is what they call the local prosecutor there) or the Arizona Attorney General swearing out an arrest warrant.  And of course the Arizona Governor has powers of pardon and reprieve over state crimes analogous to the President’s in the federal system in all events.  Nevertheless, state criminal remedies remain legally available and theoretically unimpaired.

Finally, it is my possibly superficial understanding that a presidential pardon does not affect civil liability.  (Knowledgeable readers with contrary information are invited to enlighten me.)  Indeed, the proceedings that eventuated in Arpaio’s conviction for criminal contempt began with a civil suit for a structural injunction, and the injunction that Arpaio was convicted of violating was the one issued in that action.  I have not looked into whether a pardon affects the preclusive power of prior adjudications of wrongdoing against the person pardoned, but there’s no reason I can think of why it should.  After all, if a pardon leaves civil liability unimpaired, why shouldn’t a valid prior adjudication consistent with due process have the same civil effects it did before the pardon?  And here the prior civil case resulted in an institutional injunction that, even if it was preliminary and therefore nonpreclusive, established a factual record that can be put to good use in later litigation. 

So civil liability for Arpaio’s violations of Section 1983 and related state-law torts is likely already established, or nearly so.  Yes, there are all kinds of issues yet to be determined and practical obstacles to address, among them the effects of the complex contours of Section 1983 and, for state-law torts, governmental immunities; whether offensive issue preclusion is available here on generally applicable principles (seems to me that it probably should be); whether claims for damages can proceed in class-action form (much more doubtful); and the practical need to find plaintiffs who were injured by the wrongs committed (many of whom have probably been deported) and prove their damages.  I have no idea whether Arpaio is judgment-proof, but there would seem to be no small army of contestants who would be happy to make him so.

Finally, are there broader insights to be gained from this situation?  Perhaps history teaches us that when public figures take public action through public institutions, the implications often reverberate more in the political than in the legal arena.  As far as I know Orval Faubus never faced contempt charges for resisting the Brown v. Board of Education injunction to integrate Central High.  As far as I know Bull Connor was never enjoined from, or prosecuted for, turning his dogs and fire hoses on the Freedom Riders in Birmingham.  On the other hand, if they had they been convicted of criminal contempt or some other federal crime, would President Eisenhower, or (counterfactually) a President Nixon in 1961 have pardoned them?  Eisenhower, who mustered federal troops to escort the Little Rock Nine to school, didn’t act like someone likely to pardon Gov. Faubus.  And Nixon, whose “Southern Strategy” was conducted in dog-whistles and quietly feigned ignorance, also seems unlikely to have undertaken something so bold and affirmative as a pardon, even in 1961.

The optimist observes that a political backlash and a string of civil rights laws followed the events of the late 1950s and early 1960s, and a great deal changed for the better eventually even though many prominent and outspoken public architects of racial hatred, violence and abuse remained unpunished and defiant.  Heck, George Wallace ran for President in 1968 on a platform of “segregation today; segregation tomorrow; segregation forever”; he won five states, 46 electoral votes, and nearly 10 million popular votes, 13.5% of the total. 

The pessimist observes that all that was half a century ago, and yet here we are again, this time with a President who announced his candidacy while asserting that Mexicans are “criminals” and “rapists,” and who now claims that the Maricopa County Sheriff was “doing his job” by willfully violating a duly issued federal injunction. 

Unfortunately, both the optimist and the pessimist are right.  This cancer on our body politic responded to treatment, but was never cured.  The malignancy has come roaring back. 

--Bernie

Comments

[Deep State Special Legal Counsel]

Similar to attorney discipline, Impeachment should only be considered for conduct or actions done in "bad faith." Clinton lied under oath, Nixon for burglary and obstruction. What did Trump do here? He believed he had the authority to pardon. It might be wrong, but not done out of bad faith. We don't "bang" people nor punish them for an "oops."

[Steve L.]

In Ex parte Grossman, 267 US 87 (1925), SCOTUS unanimously held that the pardon power extends to criminal contempt. (I am not including a link in order to avoid the spam filter.)

[Steve L.]

In the absence of a pardon, Arpaio would certainly have appealed. At that point, couldn't Trump just have directed the DOJ to confess error? And wouldn't that have been an unquestionable exercise of prosecutorial discretion?

[Bernie Burk]

Both great points, Steve.

Ex Parte Grossman demonstrates the wisdom of doing a little old-fashioned legal research, as I should have. Grossman had violated a federal court order abating a public nuisance, namely the speakeasy Grossman was operating in Chicago during Prohibition. He was convicted of criminal contempt. President Coolidge pardoned him. The case came before the Court on habeas corpus, apparently because Grossman's jailers refused to release him after he was pardoned.

The opinion is broadly reasoned and worded, and does as you say find the pardon power extends to criminal contempt. It expressly considers the separation of powers argument that Prof. Redish advances, and finds it unconvincing even in a more extreme hypothetical case: "If it be said that the President by successive pardons of constantly recurring contempts in particular litigation 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 but 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."

Redish might argue that this case is different because here the order in question enforced the Constitution itself (though this is not quite right because Congress confirmed, or perhaps created, the enforceability of the constitutional provisions at issue by enacting Section 1983). I don't see this as a distinction with a difference, especially given that, as I noted in the post, here the President pardoned one person for one set of violations of one order, while Grossman contemplates a pardon power sufficient to pardon many persons for many violations of many orders, effectively nullifying some provision or power of positive law whose creation is invested in another branch of government, with that power limited only by the political remedy of impeachment. I don't see the current Supreme Court reconsidering the principles Grossman articulates.

Your other point raises an interesting question: Can the Chief Executive obstruct justice by exercising his prosecutorial discretion, or urging his inferior officers to exercise the Executive's prosecutorial discretion, in favor of political cronies? We saw this issue recently in President Trump's alleged request to FBI Director James Comey to lay off Michael Flynn (Comey says he did; Trump denies it). Assuming it happened, was that an attempted obstruction of justice or other impeachable abuse of power? We may see that principle tested in coming days.

Yesterday, the Washington Post reported that President Trump also asked Attorney General Sessions to back off on the prosecution of Joe Arpaio while it was still pending. It seems to me this raises the same question. We may see more of this in coming days as well.

--Bernie

[anon]

"Grossman contemplates [an order to the DOJ] sufficient to [preclude prosecution]of many persons for many violations of many orders, effectively nullifying some provision or power of positive law whose creation is invested in another branch of government, with that power limited only by the political remedy of impeachment. ... was [Was] that an attempted obstruction of justice[?]"

Where have you guys been?

[[M][a][c][K]]

I had a discussion with Steve about this - and while I think both of us have problems with Trump's behaviour, as it happens the issue of the pardon power for criminal contempt was addressed by the Supreme Court in Ex Parte Grossman – although by Taft, then Chief Justice, who perhaps was more solicitous of the Presidential powers he'd exercised in the past.

The decision is interesting because it does lay out rather well the arguments against the pardon power extending to contempt of court - Taft's sympathies were the other way.

[[M][a][c][K]]

I see Steve posted above - yep, we may disagree, but for now Ex Parte Grossman settles the legality under the constitution of the pardon - and wow, are there a lot of arguments that, absent that decision, it'd be very naughty indeed,

[[M][a][c][K]]

One more - I think Grossman is wrong, but then I'm not known for my respect for judges (professors complain, sheesh! You get off lightly) But if a client asked me, I'd say in light of Grossman, your argument may be right, but it's almost certainly a loser...