President Trump’s favorite sheriff is back in court. On Wednesday, lawyers for former Arizona sheriff Joe Arpaio will argue a strange federal appeal in San Francisco. Part of what makes it strange: The court was so concerned about the Department of Justice’s position in the case that it appointed an outside special prosecutor. The House’s impeachment inquiry ought to pay attention.
Some background: For over 20 years, Arpaio ran the Maricopa County Sheriff’s Office with a callous disregard for the law. In 2011, a federal judge found that Arpaio’s office stopped Latino drivers just to determine their immigration status, and ordered Arpaio to stop detaining people without reasonable suspicion of a crime. But Arpaio ignored the injunction, and another judge convicted him of criminal contempt of court.
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That didn’t sit well with Trump. Especially when it comes to Latino immigrants, police brutality is the president’s policy. In a 2017 speech, Trump had openly encouraged police to be “rough” with “thugs” under arrest. So after Arpaio’s conviction — and just days after the white supremacist rally in Charlottesville, Va. — Trump suggested that Arpaio was “convicted for doing his job.” Trump then pardoned Arpaio and explained, “He kept Arizona safe!”
The Constitution grants the president “power to grant reprieves and pardons for offenses against the United States.” In most cases, presidential pardons shouldn’t be reviewed by courts. But the pardon power is limited by the rest of the Constitution. And the Fifth Amendment’s guarantee that no person be “deprived of life, liberty, or property, without due process of law” means that courts must be able to issue and enforce injunctions to stop constitutional violations by government officials. Otherwise, officials could simply ignore court orders.
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Trump’s pardon of Arpaio violated that principle. It sent the message that officials can violate the law with impunity. If their crimes please Trump, he’ll pardon them. Indeed, he reportedly offered to do that twice this year already, offering to pardon the commissioner of Customs and Border Protection if he were jailed for violating asylum seekers’ legal rights, and later offering to pardon officials who violate federal law to build his border wall.
Arpaio’s case could have ended quietly. But after accepting the pardon, he asked the judge not only to dismiss the prosecution against him, but also to vacate the criminal contempt conviction — to wipe the record clean, as if it had never happened. The Department of Justice, then under anti-immigration hard-liner Jeff Sessions, agreed. The judge refused to vacate Arpaio’s conviction, but she ended the case.
Arpaio, though, couldn’t let well enough alone, and appealed. And since Trump’s Department of Justice (the prosecution) is siding with Arpaio (the defendant), a group of lawyers, legal scholars, and public interest advocates of which we are a part asked the court of appeals to appoint a special prosecutor to represent the interests of the United States of America. The court agreed. (We also submitted legal papers arguing that the pardon itself was unconstitutional; the special prosecutor is not addressing this issue.)
As this circus highlights, the judiciary can manage, albeit with difficulty, to handle a single criminal appeal even when a lawless president’s Department of Justice sides with a serial violator of constitutional rights. But addressing such a president’s abuse of the pardon power may be more than the courts can handle. As Supreme Court Chief Justice William Howard Taft observed in 1925, if a president abuses the pardon power, that “would suggest a resort to impeachment.”
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The Framers agreed. During a critical constitutional debate over whether Virginia should ratify the new Constitution, George Mason argued that the president might “pardon crimes which were advised by himself.” James Madison replied that if a president pardoned anyone with whom he was “connected, in any suspicious manner,” then Congress could impeach, convict, and remove him from office. Madison concluded, “This is a great security.”
It’s tempting for the House of Representatives’ impeachment inquiry to zero in on Ukraine. The case for focusing the nation’s attention on abuse of power is compelling, but the committee needs to consider broadening whatever article of impeachment accuses the president of abusing his presidential authority to encompass abuses unrelated to the Ukraine fiasco.
This broader article should include such abuses as unjustifiably refusing to cooperate with the impeachment process authorized by the Constitution; corruptly seeking to undermine all legitimate inquiries into how the president ascended to his high office in the first instance; and blatantly misusing the pardon power, not to temper justice with mercy, but rather to cover up executive misconduct or to facilitate violations of individual rights. The arguments in Arpaio’s case on Wednesday should remind us that the Constitution is too important to leave only to the courts.
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Laurence H. Tribe is university professor and professor of constitutional law at Harvard Law School. Ron Fein is legal director of Free Speech for People.