Toward a Constitutional Crisis?

The framers of the Constitution divided governmental powers among three branches: the executive (the President), the legislative (the Congress) and the judicial (the courts), each of which has authority in its own areas.  This separation of powers has been a bedrock of American government.  Afraid of giving one branch of the government too much power, however, the framers wrote into the Constitution a system of checks and balances in which each branch can—under certain circumstances—limit the other.  For instance, the President can veto a law passed by Congress; Congress can override the veto.  The courts can declare a law or a presidential order unconstitutional.  The President appoints members of the courts, and Senators approve them.  Congress can impeach both the President and a judge.  And so on.

These checks on power are crucial to the maintenance of democratic government.

In August President Trump pardoned Arizona Sheriff Joe Arpaio.  The sheriff and his department had been unconstitutionally detaining and searching people based on their ethnicity.  A federal judge ordered him to stop.  He ignored that court order and was found guilty of civil contempt of court.  A month later another federal judge found him guilty of criminal contempt of court, for which there could be jail time.  Before Arpaio could be sentenced, however, President Trump pardoned him.  Further hearings are scheduled for October 4.

Presidents (it's generally believed**) are free to pardon essentially anyone.  Ordinarily, however, pardons are granted well after conviction and sentencing.  The pardon is usually on the basis of mercy or an injustice.  For instance, President Obama pardoned non-violent offenders sentenced to long terms for possession of marijuana.

The Arpaio pardon differs from usual presidential pardons in several important ways.

• This pardon came before the justice system had run its course through sentencing and probably appeals to higher courts.  In fact, Arpaio’s lawyer is already arguing that—since an appeals court could have conceivably overturned the conviction—the sheriff has not yet had the full opportunity to prove his innocence.  Therefore, the lawyer argues, even the conviction must be set aside and the case expunged from the record.  In that case, the President would have usurped the judicial branch’s power to judge a crime, breaching the constitutional separation of powers.  
• What is the basis for Trump’s pardon?  Legally, he doesn’t have to give a reason, but, since he does not know how severe the sentence would have been, the pardon cannot have been—as is usual—on the basis of mercy.  In fact, we know that Trump had planned to pardon Arpaio even before he was convicted.  Trump then bypassed the traditional review process.  Since Arpaio had been Trump’s long-time friend and supporter, it seems to be a case of rewarding a supporter.
• Through this pardon Trump is signaling to other officials around the country that they won’t necessarily face consequences for violating the rights of immigrants.  He has their backs.
• Trump said that Arpaio was “doing his job.”  As Greg Sargent points out, this is an implicit endorsement of Arpaio’s refusing a judge’s order that he stop violating the constitutional rights of Latino immigrants.  Trump’s pardon is, in essence, a suspension of the Fourth Article of the Bill of Rights that prohibits unreasonable search and seizure.      
• In the context of the current investigation into Russia’s attempt to sway the presidential election, perhaps the most important practical impact is to signal to subordinates that he is willing to meddle in the judicial process to protect them.  (He and his lawyers have already discussed whether he can pardon friends, family, aides … and even himself.)  One of the most powerful tools a prosecutor or investigative committee has for prosecuting the person most responsible for the crime is to offer subordinates reduced sentences (or even immunity from prosecution) in exchange for testimony against the boss.  Trump is defanging that tool by signaling that if his subordinates protect him, he’ll protect them.  In any other context that would be obstruction of justice.

It’s bad enough that the Arpaio pardon encourages further violation of immigrant rights by officials across the country.  It’s bad enough that certain aides might refuse to testify against their boss.  But the worst part of the pardon—and the most far-reaching in terms of democratic principles—is its threat to the Constitution and the separation of Powers.

No power granted by the Constitution is absolute**; it must always be understood in the context of other constitutional powers.  The President is challenging the power of the judiciary.

Is he moving us toward a constitutional crisis?

It’s hard to know at this time in Trump’s presidency which are the most important threats to democracy, but this pardon seems to be among them.

** Constitutional lawyer Lawrence Tribe in one article and Neil Buchanan in another argue that the presidential power to pardon is not absolute.  If the pardon continues to be an issue, I will return to their thinking.