Contempt of Court
Yesterday President Donald J. Trump pardoned the former Sheriff of Maricopa County (Phoenix, Arizona) Joe Arpaio. Arpaio was convicted in Federal Court for Criminal Contempt. His department was profiling Hispanics, stopping and placing them in custody until they could prove their US citizenship. When some of the US citizens who were jailed went to Federal Court, the Court agreed that the Department was violating their 4th and 14th Amendment rights. The Court ordered Arpaio to stop these actions. He continued the profiling for years, and therefore was held in contempt.
Trump’s actions really surprised no one. He has made it clear that he will go to great extents to keep “undesirables” out of the United States, including his Muslim ban and asking local police departments to enforce immigration policy. Arpaio decided he knew better than the Courts what was “good” for Maricopa County, mirroring Trump’s own view.
Trump has demonstrated disdain for the Courts. His career in real estate began in Court, as he was sued by the Department of Housing and Urban Development for discrimination in leasing apartments. His businesses have used the Courts to avoid paying debts, to declare bankruptcy, and in general as a tool for furthering their own financial interest.
Trump doesn’t recognize that judges might operate without bias. His claim against Gonzalo Curiel, who heard the case against Trump University, was that of course Curiel would rule against him; he was Hispanic and Trump was against illegal immigration. (Curiel, the son of legal immigrants, was born and raised in Indiana and got his law degree at Indiana University.)
Trump has constantly criticized the judges (as opposed to the decisions) of the Courts that have ruled against his various immigration schemes. Most notably, he has claimed that the 9th Circuit of Appeals is an “Obama” court, getting back at him for being elected.
Trump clearly has contempt for the Courts, and his pardon of Arpaio allows him to display that contempt. It also fits in with his current strategy of “playing to the base.” More insidiously, his preemptive use of the pardon power at this time also may be the beginning of a grander strategy to “pardon” his way out of the Russia crisis.
Here’s how that might work. The Mueller investigation in part is based on pressure. Like any criminal enterprise investigation, it begins with the “smaller fish:” truthful testimony elicited with promises of leniency. The information gathered is then used to get the “bigger fish.”
A Presidential pardon can be for actions that might have occurred (see Ford’s pardon of Nixon) and prevents any Federal prosecution. However, it would also remove the “pardonee’s” 5th Amendment right to refuse to testify due to self-incrimination. Should a person who is pardoned refuse to testify, the next leverage against them is criminal contempt of court. However, with the Arpaio pardon, it is clear that the President would be willing to pardon that infraction as well, thus closing down that entire line of testimony.
It would be incredibly ugly, but it would work. There is absolutely no legal check on the President’s right to pardon, with the exception that it applies to Federal cases only. State cases could continue. (Could Trump pardon himself? There is no precedent, and it would certainly end up in the US Supreme Court.)
There is, of course, one massive check on Presidential power. If it became clear that President Trump was using the pardon power to obstruct justice, that certainly would be an impeachable offense. It would require the members of the House and the Senate to put down their political battles, and find the courage to do what’s right for the country. If Trump starts to “pardon his way out” of this, let’s hope they find it.
