Predictably, outrage swiftly followed the pardon. Pointing both to the crime for which Arpaio was convicted and the fact that Trump did not make use of the Justice Department’s normal machinery for considering pardons, many have insisted that the president’s action flouts the rule of law. Some have even argued that it’s outright unconstitutional.
But that’s the wrong way to criticize the Arpaio pardon. The Constitution grants the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The power is broad and (except for the impeachment carve-out) unqualified.
But that’s the wrong way to criticize the Arpaio pardon. The Constitution grants the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The power is broad and (except for the impeachment carve-out) unqualified.
More importantly, one can easily imagine situations in which defiance of a court order is wholly justified, and we would want the pardon power to be available in those cases. Consider the following hypothetical (inspired by, although differing in important respects from, the facts of a 1965 case): In the Deep South during the civil rights movement, a heroic county registrar of voters defies an order issued by a racist federal judge to purge the voting rolls. A jury — from which African Americans were, of course, excluded — convicts the registrar of criminal contempt. A pro-civil-rights president then immediately issues a pardon.
Many people, myself included, would find that pardon not only unobjectionable, but indeed, laudatory. Formally, however, that hypothetical process looks similar to the process Trump used: A president, without waiting for the usual Justice Department procedures to run their course, pardons an ideological ally who had been convicted of contempt of court for using state power in defiance of a federal court order.
This does not, however, suggest that the Arpaio pardon was acceptable. Instead, it points to the limits of thinking about the issue formally. Formal reasoning is seductive, because it holds out the false promise of neutrality — we don’t have to talk about messy issues such as racism, xenophobia or state brutality; instead, we can just dwell on whether normal procedures were followed and whether the president was insufficiently deferential to a judge. We can call those considerations “the rule of law,” because that’s something everyone can get behind.
But as the hypothetical pardon makes clear, we don’t think normal procedures should always be followed, and we don’t think judges should always be obeyed. Especially for something like the pardon power, which by its very nature exists at the edges of the law, trying to find formal, neutral limiting factors that really ought to apply across the board will prove difficult, if not impossible.