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Davis Merritt: Arpaio pardon may strengthen our rights

Davis Merritt
Davis Merritt File photo

Why should you care about President Donald Trump’s preemptory pardon of Arizona ex-sheriff Joe Arpaio for criminal contempt of court?

After all, with 20,000 presidential pardons since 1900, one might think that nothing had been left unexplored about that monarchial power granted to U.S. presidents. But with this pardon, Trump tests the boundaries of constitutional integrity.

Since George Washington pardoned two men sentenced to hang for their parts in the bloody Whiskey Rebellion, every president but two has pardoned people. Their reasons vary wildly. Some pardoned hundreds of thousands at once, as Jimmy Carter did for Vietnam War draft resisters. Some pardoned relatives, as Bill Clinton did for his drug-pushing brother.

And at least three earlier presidents pardoned individuals for criminal contempt of court, though two of the pardoned had already served their sentences while the third (ironically a newspaper editor protecting his leaker sources) declined Woodrow Wilson’s pardon.

But Trump is apparently the first president to barge into the middle of a criminal contempt case and try to shut it down peremptorily.

It was a really bad idea at many levels, but ultimately it could lead to useful limitations on presidential power and a clearer delineation of the separation between the executive and judicial branches. Of course, those were not Trump’s objectives.

Arpaio himself is, perhaps unwittingly, starting down the road to those improvements by asking the judge who found him in contempt to vacant his conviction. U.S. District Judge Susan Bolton scheduled a hearing on Arpaio’s request for early October. That will test whether the Justice Department’s career lawyers who filed the case pre-Trump will continue to advocate vigorously for their original cause or cave in to the expressed wishes of their new boss.

If the judge refuses to vacate the conviction, Arpaio will appeal, and that’s one way to get the question of pardon power before circuit courts and eventually the Supreme Court.

The other challenge to Trump’s usurpation by pardon will be one or more lawsuits being prepared by opponents of his action.

Their contention is that the only tool the court system has to enforce its rulings is contempt citations against those who defy them, as Arpaio defied a court order to stop detaining Latinos merely because they might be undocumented. If a president can reach across the separation of powers gap between executive and judicial power to nullify court injunctions, the entire judicial system is rendered impotent for all purposes and government agents are free to ignore any constitutional rights.

That argument raises the question of whether the pardon power is as unconditional as it appears in the Constitution approved in 1787. Trump and his backers think that it is. The opposition, however, contends that later amendments, such as the Bill of Rights, are equally part of the constitution and limit many of the powers granted in the original seven articles.

For instance, they argue that the Fifth Amendment’s due process clause empowers courts to hold in contempt government officials who violate individual rights and, if the officials persist, punish them. And that means even a president may not, through pardoning criminal contempt, nullify individual rights granted by the constitution.

The ironic bottom line: the Constitution recognizes rights and distributes power, and Trump’s abuse of it may wind up strengthening the document that he wishes to ignore and the judicial branch he routinely denigrates.

Davis Merritt, Wichita journalist and author, may be reached at dmerritt9@cox.net.