Trump's Arpaio pardon: Legal and disgraceful

Story highlights
  • Paul Callan: With pardon, Trump has rewarded Arpaio for trashing the Constitution, and slapped federal judiciary in the face
  • Callan: History and the voters will judge harshly Trump's gift to the law-breaking and unrepentant ex-sheriff

Editor's Note: (Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.)

(CNN) President Trump swore an oath to uphold the Constitution, which requires him to "take care that the laws be faithfully executed."

Given the clarity of that instruction, it is truly bizarre that Trump would grant his first presidential pardon to Joe Arpaio, the controversial former sheriff of Maricopa County, Arizona, who is also a persistent and legendary violator of the legal and constitutional rights of Latino visitors, residents and citizens.

After two respected federal judges struggled to compel the publicity-hungry sheriff to obey the law, first by holding him in civil contempt and later convicting him of criminal contempt, the President has chosen a different route. He has rewarded the ex-sheriff for trashing the Constitution, and has once again slapped the federal judiciary in the face.

Other presidents are remembered for their courage in upholding and enforcing the lawful orders of federal courts. John F. Kennedy's proclamation in 1963 forced the Alabama governor, George Wallace, to comply with federal court orders permitting black students to register at the University of Alabama. Kennedy then met with his brother, Attorney General Robert Kennedy, to find other ways to help the federal courts enforce desegregation orders in Alabama.

When Wallace continued his defiance, Kennedy threatened to federalize the Alabama National Guard. Kennedy undoubtedly infuriated many in Alabama, but he earned a place in history and the respect of the nation for his courage in supporting the Constitution, the federal courts and the rule of law.

Then there is President Trump.

He also reportedly met with his Attorney General, Jeff Sessions -- but for a far different reason. He wanted the Justice Department to end its criminal contempt case against Arpaio. Sessions apparently rejected this inappropriate request.

Such a consultation and request would be highly unusual and probably violate Department of Justice protocols. Nonetheless, they were probably legal actions, since the Justice Department is part of the executive branch of government and the Constitution places no limitations on presidential consults with the attorney general.

When his effort to terminate the Arpaio prosecution failed, Trump came up with a personal workaround. He issued his first presidential pardon, forgiving Arpaio for his criminally contemptuous refusal to obey the lawful orders of a federal court.

The case at the root of this Arpaio pardon began when Manuel Melendres -- a Mexican citizen and retired elementary school teacher visiting the US on a legal travel visa -- was arrested and detained in one of Arpaio's immigration sweeps. Melendres sued Arpaio and the Maricopa County Sheriff's Office in a certified class action lawsuit on behalf of other Latinos, including Arizona citizens and residents, who had allegedly been subjected to similar illegal detainment, harassment and "pretext" traffic stops.

Ultimately they won the lawsuit, with the federal court finding that the sheriff's office had violated the Equal Protection Clause of the 14th Amendment because the stops were being made on the basis of ethnicity, and Fourth Amendment violations because they were often made without reasonable or probable cause.

After the federal judge in the case issued a detailed cease and desist order, requiring the then-sheriff and his deputies to terminate the illegal and unconstitutional sweeps and "pretext" traffic stops, Arpaio defied the court order and publicly bragged about it.

An exasperated US District judge, G. Murray Snow, later issued a civil contempt order, concluding that Arpaio had made false statements about his department "in an attempt to obstruct any inquiry into their further wrongdoing or negligence," and further noted that Arpaio and his chief deputy "have a history of obfuscation and subversion of this Court's orders that is as old as this case and did not stop after they themselves became the subjects of civil contempt."

Arpaio's persistent refusal over five years to obey the court orders finally led Judge Snow to refer the matter to the Department of Justice for a far more serious criminal contempt of court prosecution. The DOJ's agreement to seek no more than a six-month jail penalty meant that under federal law this was a "minor" offense properly tried before a judge rather than a jury. Arpaio's lawyers objected, seeking a jury trial, but the objection was denied.

The criminal case was assigned to US District Judge Susan R. Bolton, who conducted a full trial, which included the testimony of Arpaio. He denied intentionally violating any court orders, but Bolton found him guilty of criminal contempt, citing his frequent public statements that demonstrated an intentional and willful defiance of the federal court orders issued by Judge Snow.

Sentencing was set for October 5 but will no longer be necessary due to the pardon issued by Arpaio's guardian angel and fervent supporter, President Trump.

Though many may disagree with this pardon, it is perfectly legal under existing federal law. The US Constitution accords the president wide discretion in the issuance of pardons. It states that the president "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

The Supreme Court of the United States has ruled that the president can properly issue a pardon even regarding criminal contempt of a federal court order, as is the case in the Arpaio matter. Indeed, the court's decision suggests a presidential pardon power so broad and unfettered, that Trump could probably issue a pardon via Twitter and get away with it.

Challenges to the legality of this pardon might look superficially attractive but would fail in the end. For instance, the President appears to have completely ignored Justice Department regulations in failing to run the pardon through the extensive vetting process of the DOJ's Office of the Pardon Attorney. The extensive rules outlined by that office include requirements that the victims of the offense must be interviewed and the defendant should express remorse before issuance of a pardon.

None of this was done. In fact, the pardon attorney has yet to be appointed; the deputy pardon attorney is in charge and has issued no public statement on the Arpaio matter.

Nonetheless, though legal, the use of a presidential pardon in the Arpaio case to annul a federal contempt finding is yet another brazen insult tossed at the judiciary by a President who has repeatedly denigrated this co-equal branch of government and its members.

Until now, no US president has ever used the pardon power to tamper with the enforcement of a federal court order in the manner that President Trump has here.

Sadly, though, the legality of the Arpaio pardon is unlikely to ever be tested, as no one will have legal "standing" (having a protectable legal stake in the outcome of a case) to file a legitimate appeal. Neither former Sheriff Arpaio nor the Trump Department of Justice are likely to object to the pardon, and federal judges don't appeal their own court orders under current federal law.

Only history and the voters, should Mr. Trump run for re-election, will have the opportunity to judge the propriety of his gift to Arizona's infamous ex-sheriff.

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