Davis Merritt: How democracy ends and monarchy begins

The people who built America feared tyranny more than any other force because they had endured it, so they designed a three-part government of checks and balances on the absolute power of its leaders.

President Donald Trump’s preemptive, thoughtless pardon of Arizona ex-sheriff Joe Arpaio is a direct attack on that founding notion. It is wrong on every level except one: Trump had the constitutional authority to do it.

But that does not make it right, nor harmless, nor courageous, nor intellectually sound.

In his haste to toss more red meat to his shrinking minority of supporters, Trump again demonstrated his uncertain grasp on the principles of American democracy and his absolute disregard for the rule of law. It was yet another superficial decision not analyzed beyond his need for immediate political leverage and “a win.”

The history of presidential pardons is hardly controversy-free. Since George Washington, many executive pardons — whether by presidents or governors — have, unavoidably, reflected political dimensions, but the great majority of them involved the restoration of the rights of little-known people who had already served their sentences or the repair of reputations undone by malfunctions of process.

This pardon, however, has darker implications reaching far beyond the future of a convicted sheriff who defied a federal court order to stop arresting people because they looked like immigrants. For years, Arpaio’s deputies stopped and questioned Latinos whether or not any state or local laws had been violated. They demanded proof of citizenship, and those who could not provide it were turned over to federal agencies for deportation.

Finally, in response to a civil suit, a federal judge said Arpaio’s over-reach and trampling of constitutional rights had to stop. Arpaio ignored — even publicly flaunted — the order and was found in criminal contempt last month by a second federal judge. His sentencing — to six months in prison — was to be Oct. 5. Arpaio had appealed, but Trump stepped in.

Trump’s intrusion is deeply disturbing to anyone who cares about the rule of law and the separation of powers. The only way courts can enforce their rulings is through injunctions prohibiting violation of constitutional rights and backed up by contempt convictions and jail terms . A governor or president who intervenes in a contempt case is negating the ability and duty of the court to enforce its rulings. This converts the judiciary from an independent branch to a dependent one able to fulfill its constitutional role only if the executive allows.

Many state constitutions, recognizing the problem, ban pardons in contempt cases; unfortunately, the U.S. Constitution does not (yet) include that limitation. (Note to people who are just fine with the pardon: think again. Over time, the political pendulum inevitably swings, and one day you will need an independent judiciary to protect your rights, too.)

The possibility of a president destroying the authority of the court is real. Trump abused the pardon power by blocking the federal court’s effort to protect the clear constitutional rights of citizens; he excused the lawlessness of an official sworn, as Trump himself is, to defend the Constitution.

Imagine a situation in which a federal court held a cabinet member in contempt for failure to follow a court order to stop violating individual rights of citizens. Under Trump’s ominous precedent, a president could intervene and immunize that person, rendering the courts impotent. Then imagine a president who assured his cabinet members in advance of his protection, unleashing them to act without regard to individual constitutional rights.

That’s where democracy ends and monarchy begins.

This story was originally published August 29, 2017 at 4:55 AM with the headline "Davis Merritt: How democracy ends and monarchy begins."