Saturday, August 26, 2017

The Arpaio Pardon Through the Lens of Trump Exceptionalism

by Michael Dorf
(cross-posted on Take Care)

Donald Trump's pardon of Joe Arpaio has been widely condemned as a threat to the rule of law. For example, Senator John McCain tweeted:








McCain is right. Arpaio was convicted of contempt for intentionally violating a court order forbidding him from detaining people solely on suspicion of having entered the country illegally. Trump's pardon is despicable because, as McCain notes, Arpaio's policy centered on illegal and immoral racial profiling of Latinos. It is a a threat to the rule of law because contempt is the means by which courts enforce their orders. The use of the pardon power to undo contempt convictions poses a threat to the independence of the judiciary and thus, as McCain says, the rule of law.

To be sure, there could be extraordinary circumstances in which a president appropriately issues a pardon for contempt. My colleague Josh Chafetz suggests one in a Twitter thread. He writes:
Imagine a civil rights activist in the South in the 1960s is held in contempt of court by a racist judge. I see nothing wrong with the DoJ of a pro-civil-rights administration (say, that of LBJ) pardoning the civil rights activist even without going through the normal DoJ pardon procedures. That's *formally* similar to the Arpaio pardon. But that just points to the fact that formalisms here are a distraction. The problem with the Arpaio pardon isn't that the Sessions DoJ didn't go through the normal procedures before approving it. The problem is that he's being pardoned for a crime arising out of being a racist and an incredibly harsh wielder of state power. And the pardon is therefore very much of a piece with other highly objectionable acts of this administration.
I respectfully disagree. The fact that Arapaio and Trump are racist authoritarians is a problem, but it's not the only problem here. Another characteristic feature of Trumpism is disrespect for, and flirtation with defiance of, the courts as independent authorities--from his (racist) attack on Judge Gonzalo Curiel during the campaign to his description of Judge James Robart as a "so-called judge" after he enjoined Trump's travel ban.

But whereas the statements regarding Judges Curiel and Robart were merely dangerously inflammatory words, the Arpaiao pardon is action. The other Trump action it most closely resembles is his firing of FBI Director James Comey. Trump didn't like the way in which the wheels of justice appeared to be turning, so he attempted to smash the wagon. Notably, the Comey firing was not tinged with racism but, like the Arpaio pardon, it was a threat to what Josh's Twitter thread calls "vague notions of the 'rule of law.'" The scare quotes are Josh's, not mine. 

In an important essay inspired by promiscuous complaints about violations of the rule of law by both sides in the contest that culminated in Bush v. Gore, Jeremy Waldron asked: Is the Rule of Law an Essentially Contested Concept? An "essentially contested concept," Waldron explains, is a term coined by W.B. Gallie to refer to concepts that are not merely fuzzy at the edges (as most concepts are) but have no agreed-upon core. Waldron is a judicial-review skeptic, and so for him, the essential contest surrounding rule of law concerns the role of courts: If, as the term "rule of law" implies, the concept means that laws, rather than men, rule, then, Waldron asks, how can we say that there is an obligation to follow the construction of law by judges, who are, after all, men and women?

I much like Waldron's essay, and I think Josh's tweet, which gestures in its direction, is right as a matter of legal theory. But, to state the obvious, Trump exists in the real world, not legal theory or any other kind of theory. We can argue over whether the rule of law implies judicial supremacy or anything else. Meanwhile, Trump is not arguing. He does not subscribe to one of many contestable conceptions of the rule-of-law concept. He rejects the idea out of hand. Trump believes only in the rule of Trump.

Accordingly, the fact that there are circumstances in which a pardon for contempt could be issued by a normal president without threatening the rule of law is not really relevant to whether this pardon by this most abnormal president threatens the rule of law.

9 comments:

Shag from Brookline said...

This pardon is Trump's concept of self-defense. Recall Trump's escalator descending entry in 2015 as a Republican candidate in the 2016 presidential campaign with his racist screeds that continued to and beyond his becoming the Republicans' nominee, the general election campaign, and into his presidency. Trump circled the bases for his base under the cover of hurricane Harvey.

This pardon is also pre-emptive self-defense aimed at Mueller's investigations.

The Sunday political shows may feature Trump Administration surrogates who will focus upon hurricane Harvey as cover for ignoring the issues raised by the pardon, a "perfect storm" for the Administration. Some Trump surrogates might point to "Dr." Gorka's removal from the Trump Administration as a demonstration of presidential pivoting. Too much pivoting may dig a deeper hole for Trump.

How will Republicans other than John McCain react to the pardon, which also serves as an exclamation point to Trump's views on Charlottesville? How well have Republicans reacted to Charlottesville? Gary Cohn has expressed his views but we don't know Trump's reaction, yet.

And while I'm at it, let me mention Treasury Sec'y. Mnuchin's Scottish spouse's "Let them eat Haggis" variation on Marie Antoinette with her twitter rant of one who complained of her commercialization with a government plane in the background.

Joe said...

Is Shag saying Trump practiced his Second Amendment rights?

This is one of those many cases where there isn't any "one" problem though something might dominate. I find it an easy but dubious practice to speak of single aspects and find myself inclined to hedge a lot. There is something a bit unsatisfying about that, but over time, find it matches reality better.

The LBJ example might work but it's atypical. And, even there, he might set up a more procedurally principled path, especially given the situation was likely to arise repeatedly. Arpaio wasn't even sentenced yet. I read in one article that was due in October. What was the rush? Of course, if Trump submitted the pardon through normal challenges, principled government servants would advise him not to do it.

But, it's acceptable for an executive to reject advise. At least, it would have gone through the normal process. This was just a rush job that was even more gratutious given the timing (especially as a storm was going on). It suggests the process in some states that restrains governors at least to some degree has some merit too.

Joe said...

Note: this was also posted at Take Care Blog where the "Daily Update" still says "President Trump might pardon" him.

Shag from Brookline said...

Here's a longer quote from John McCanin:

“No one is above the law and the individuals entrusted with the privilege of being sworn law officers should always seek to be beyond reproach in their commitment to fairly enforcing the laws they swore to uphold,” McCain said in the statement. “Mr. Arpaio was found guilty of criminal contempt for continuing to illegally profile Latinos living in Arizona based on their perceived immigration status in violation of a judge’s orders. The President has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions."

Arpaio took pride in his actions, and so did Trump.

There is no self-defense from impeachment, except in the manner of Nixon. Of course a president Pence could pull a president Ford, even though President Trump might try a self-pardon as a form of self-defense.

Michael Livingston said...

In Barbara Tuchman's book about pre-1914 Europe, there is a story in which the German army/police break the law in Alsace-Lorraine. The Kaiser's son, if I remember correctly, takes a pen and writes on the court order: Don't pay attention to this, keep up the good work, something to that effect. You know you're in trouble when your historical parallels come from Imperial Germany.

Shag from Brookline said...

Check this out from the NYTimes Sunday Review up now:

NICHOLAS KRISTOF
There Once Was a Great Nation With an Unstable Leader

This might be a good time for disheartened Americans to remember that Rome survived Caligula.

Kristof also talks about Nero.

Joe said...

Washington Post article cites sources that Trump wanted to shut down the criminal contempt prosecution, Sessions (ah the voice of reason) said that was inappropriate, so Trump just sat on his heels planning all along to pardon if Arpaio was convicted.

Who would of guessed during the campaign this guy would not respect normal court process, both in civil and criminal contexts?

Asher Steinberg said...

I'm not comfortable with the pardon in Chafetz's hypothetical either. I wouldn't like Presidents to second-guess the merits of injunctions, however wrong they may seem; I'd prefer their correctness to be worked out through the normal appellate process. There may, for all I know (I don't know and have no idea), be a serious argument that the injunction in Arpaio's case was wrongly entered (as a matter of law, not as a matter of disagreement with the current state of it) in a politicized case, but I quite agree with the sentiment that this isn't the President's call to make. Faulting this pardon because Arpaio's contempt of this injunction was really normatively bad, while contempt of some other injunction might be okay, troubles me for the same reasons the pardon troubles me.

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