Trump vs. the Constitution

I’m late on Quick hits part 2.  For now, read this on Arpaio.

Law Professor Noah Feldman’s take has been, deservedly, drawing a lot of attention:

To see why pardoning Arpaio would be so exceptional — and so bad — you have to start with the sheriff’s crime. Arpaio wasn’t convicted by a jury after a trial for violating some specific federal statute. Rather, he was convicted by a federal judge on the rather unusual charge of criminal contempt of court…

Judge Bolton convicted Arpaio of criminal contempt. She found he had “willfully violated” the federal court’s order “by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” And she held that Arpaio had “announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.”

This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution. [emphases mine]

It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society.

It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy, the way George H.W. Bush pardoned Iran-Contra participants, including Caspar Weinberger and five others.

But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S…

Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.

An Arpaio pardon would express presidential contempt for the Constitution. Arpaio didn’t just violate a law passed by Congress. His actions defied the Constitution itself, the bedrock of the entire system of government. For Trump to say that this violation is excusable would threaten the very structure on which his right to pardon is based.

Fundamentally, pardoning Arpaio would also undermine the rule of law itself.

About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

3 Responses to Trump vs. the Constitution

  1. R. Jenrette says:

    Don’t you think Trump is completely good with these Constitutional violations? It’s completely predictable though reprehensible that he would pardon such a man for his own political gains. He sees it as a win with his supporters.
    Winning is not just an important thing to him; it’s the only thing.

  2. Mike in Chapel Hill says:

    Did this make liberals mad? If “yes” then Republicans love it. No further explanation needed.

    • R. Jenrette says:

      As I said, winning is the only thing that counts, no matter how hard it makes to get something passed in Congress.
      Cutting off your nose to spite your face? Folk wisdom.

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