Sheriff Joe Arpaio is an elected official who regularly violated a federal injunction against racial profiling. Last July he was found guilty of criminal contempt for defying the court by continuing his practice of rounding up people who “looked Hispanic” and confining them in what he himself described as “concentration camps.”
Since Trump took office, he has tried to severely limit not only illegal, but even legal, immigration. In striking down his executive orders, the courts infuriated the President. But Trump admires Arpaio because the Sheriff was nonetheless carrying out Trump’s illegal orders and was an ardent Trump supporter to boot.
Though the Constitution grants the president the power to pardon, many are outraged by Trump’s in-your-face endorsement of a man who flagrantly violated the constitutional rights of the people he targeted. The judiciary has, for the most part, reacted to Trump by stymieing his overreach. His Muslim ban was recognized as such and modified, despite the White House’s attempt to whitewash it.
But now we have entered new territory. Inevitably, as “unprecedented” so often describes Trump’s actions, it has lost its power to shock. We expect his Twitter tantrums, his denigration of anyone who has the temerity to criticize him, his flagrant corruption and nepotism, his appointment of agency heads who are either incompetent or beholden to competing interests. The list goes on and on.
Yet when I began to appreciate the ramifications of Arpaio’s pardon, my blood ran cold. Backed by the Constitution, Trump can sanction any crime. He has so much as given the assurance to anyone who carries out his wishes that he may do so with impunity. As Martin H. Redish chillingly wrote in the NY Times:
But if the president signals to government agents that there exists the likelihood of a pardon when they violate a judicial injunction that blocks his policies, he can all too easily circumvent the only effective means of enforcing constitutional restrictions on his behavior. Indeed, the president could even secretly promise a pardon to agents if they undertake illegal activity he desires. [emphasis mine]
Extrapolating, Trump may have found the means to completely subvert the judiciary, leaving only impeachment as a recourse to restore a constitutional democracy. (It’s unlikely his cabinet of henchmen would remove Trump from office by enacting the 25th Amendment.)
Trump has an unprecedented(!) military presence in the cabinet. He is commander-in-chief of the armed forces, whose weapons and numbers he has vowed to increase, and also controls the huge network of law enforcement, including the police and agencies like the FBI. Does the emergence of a despotic and repressive regime seem very far-fetched?
Nevertheless, Redish, a professor of constitutional law, has a “novel theory.”
He theorizes that since the Bill of Rights (the first 10 amendments) were added to the Constitution after its completion, in a conflict between the president’s pardon power and an amendment, the amendment would take precedence.
[O]n its face the pardon power appears virtually unlimited. But as a principle of constitutional law, anything in the body of the Constitution inconsistent with the directive of an amendment is necessarily pre-empted or modified by that amendment. If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation. [emphasis mine]
The “due process” clause of the Fifth Amendment provides that no one may be deprived of life, liberty or property without due process of law, i.e., a court ruling.
The Fifth Amendment’s guarantee of neutral judicial process before deprivation of liberty cannot function with a weaponized pardon power that enables President Trump, or any president, to circumvent judicial protections of constitutional rights.
As Redish notes, the Supreme Court has never ruled on the limits, if any, on the presidential pardon power. Given that we are in uncharted territory, however, the Court may be called on to show the way. Assuming justices appointed by Trump would feel disposed to rule against him.