We talk a lot in the Trump era about novel constitutional problems, and a lot about special prosecutors. But in the wake of President Trump’s controversial pardon of former Arizona Sheriff Joseph Arpaio, it’s important to talk about both at once, and to ask: Should the US District Court in Phoenix, which found Arpaio guilty of criminal contempt, now appoint a special prosecutor to defend that conviction, in the face of a pardon that might well be unconstitutional?
Arpaio was convicted of violating a court order that directed him to stop arresting Latinos unless he had probable cause that they had committed a crime. The now familiar facts underlying that order — and Arpaio’s flagrant disregard of it — have been powerfully summarized by a law clerk who worked on the case. And given both Arpaio’s misconduct and his prior history (he once bragged about putting immigrants in a “concentration camp”), the pardon — President Trump’s first — has drawn widespread criticism, including from Arizona’s two Republican senators and from the Republican Speaker of the House, Paul Ryan.
Some legal scholars, however, have gone further, advancing the novel argument that the pardon is not only a terrible idea, but also unconstitutional. Courts, the argument goes, exist to protect constitutional rights, which they do by ordering people who are violating those rights to stop. Pardoning someone convicted of violating such an order nullifies the courts’ ability to enforce it, and thus impermissibly threatens the independence of the judiciary, the rule of law, and the underlying constitutional rights themselves.
This argument faces an uphill battle, given that the Supreme Court has held that the president’s pardon power extends to criminal contempt convictions. That case, however, did not involve a public official convicted of disregarding an order that required him to honor civilians’ legal rights. So Arpaio’s case is different. And that raises the possibility that a court might hold Trump’s pardon unconstitutional, given the threat it poses to turn federal courts into “mere boards of arbitration whose judgments and decrees would be only advisory,” something the Supreme Court has also cautioned strongly against.
The potential unconstitutionality of Arpaio’s pardon could explain why the judge overseeing his case has not yet thrown out his conviction, even though the pardon has literally been signed, sealed, and delivered. Rather, the judge has scheduled a hearing for early October to decide what to do next.
And that’s where the question of a special prosecutor comes in. Two groups of lawyers have written to the Department of Justice, urging the prosecutors in Arpaio’s case to tell the court that the president’s pardon is invalid. That letter shows real moxie. But it is also barking up the wrong tree: The Department of Justice works for the president. Indeed, the pardon itself has the big gold seal of the Department of Justice embossed right next to the president’s signature. These prosecutors will not and should not challenge the pardon.
But another prosecutor, from outside the Department of Justice, could challenge it, and thus argue that Arpaio’s conviction should stand. And given the unique nature of criminal contempt cases, the judge overseeing Arpaio’s case has the clear authority to appoint an independent prosecutor to take over here — including a private attorney from outside the government. That is because, unlike all other federal criminal prosecutions, which the executive branch must initiate, contempt prosecutions stem from the judicial branch’s independent power to enforce its orders. Thus, as the Supreme Court has made clear, “courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.”
Ordinarily, courts rely on Justice Department lawyers to handle such prosecutions, as occurred here, with those lawyers successfully securing Arpaio’s conviction. But as courts have explained, the judiciary also appropriately turns to private special prosecutors when the Department of Justice has a conflict of interest seeing a contempt case through. Indeed, when the government declines to press forward, federal rules say that “the court must appoint another attorney to prosecute the contempt.”
Arpaio’s prosecution isn’t over: He hasn’t been sentenced, his conviction hasn’t been set aside, and the judge has set a hearing to decide what to do next. At that hearing, the two lawyers currently on the case — one speaking for Arpaio, the other speaking for the president — will both defend the pardon’s constitutionality. Perhaps they’re right. But this issue is serious enough that the court deserves to hear someone present the argument on the other side, the argument that the pardon is not constitutional. And that requires appointing a special prosecutor who will seek to vindicate the judicial branch’s power to punish those who violate not only our constitutional rights but lawful court orders as well — a power that arguably supersedes the president’s pardon authority when the two conflict.
Fortunately for the court in this case, there is no shortage of qualified attorneys, in private practice or in the legal academy, capable of accepting such an appointment. And fortunately for the rule of law, the court has the power to make it.
Andrew Manuel Crespo is a law professor at Harvard University, specializing in criminal law and criminal procedure. He tweets @AndrewMCrespo.