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Friday, August 25, 2017

More on pardoning Arpaio (Updated)

Thanks to Paul for flagging Marty Redish's NYT op-ed on the potential Arpaio pardon. Like Paul (and Marty), I do not know if the argument works. But I wanted to flag how his argument interacts with the version of "judicial departmentalism" I have been urging. My framing relies on Gary Lawson's version of departmentalism--the president can ignore judicial precedent as precedent he believes gets the Constitution wrong, but cannot ignore court orders. That includes the orders by which he is bound by as a defendant (e.g., the challenge to the travel ban) and the orders he must enforce on behalf of the federal courts involving other officials,even if he disagrees with the underlying constitutional judgment.*

[*] Lawson allows that the president might ignore a court order in extraordinary circumstances, but I put that to the side for the moment.

Marty's argument gives Gary's (and my) distinction a Fifth Amendment grounding. There is no functional difference between the president ignoring or declining to enforce a judgment and a president pardoning (or promising to pardon) another official who ignores court orders. If one violates due process, so does the other. And if departmentalism does not extend to one, it does not extend to the other.

Finally, if this becomes a concern, consider the federal courts' counter: Stop using criminal contempt and rely on civil contempt to enforce injunctions, including by jailing the recalcitrant official. There is no crime or conviction from which to pardon.

Update: Trump pardoned Arpaio on Friday.

Posted by Howard Wasserman on August 25, 2017 at 01:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I find the pardon disgusting, and it very well might be possible to say it is an abuse of power open to impeachment, but I too am not convinced that it is was somehow "unconstitutional."

Anyway, coverage in the Washington Post regarding talk that Trump wanted to end the prosecution complicates the whole question. The judge had to rely on the executive department to prosecute the criminal contempt. Since it was a prosecution, the executive clearly has some power here, including if it is determined after the fact that the contempt was prosecuted based on bad evidence that a judge is unable or unwilling to address.

It is also a case of how there are not really separate departments, that there is going to be some overlap, as James Madison discusses. Separation of powers is not absolute. I'm not an originalist, but still find it helpful to cite Madison since people like the guy so much.

Posted by: Joe | Aug 27, 2017 11:02:39 AM

Personally, I find Redish's argument wholly unconvincing

Posted by: YesterdayIKilledAMammoth | Aug 26, 2017 2:09:55 PM

Whether or not it violates the Constitution it is rather worrying for the democratic norms. Trump is too incompetent, I think, to turn the US into a dictatorship but who knows what the long-term damage will be.

Posted by: Jr | Aug 26, 2017 11:58:28 AM

Howard, I found Marty's op-ed to have a separation of powers cast to it that I couldn't quite articulate. Perhaps your departmentalism approach is a working out of that separation of powers approach.

Posted by: Joe Miller | Aug 25, 2017 2:24:32 PM

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