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.