The power of pardon

CAN A JUDGE IGNORE IT WHEN A PRESIDENT ANNULS A CONVICTION?

As someone with a strong anarchistic streak, I have an interest in constitutional issues that a computer scientist would call “edge cases.” These are occasions on which the logic of a government is tested to its limits — presented with some outrageous or bizarre extreme. If your brain works like this, you are obviously hoping for a real buffet from the Donald Trump presidency.

Well, form a line. Something curious happened on Wednesday that was noticed by the Washington Post conservative blogger Jennifer Rubin. Susan Bolton, the senior U.S. District Judge for Arizona, seemed to balk at President Trump’s pardon of Maricopa County’s former sheriff/local grotesque Joseph Arpaio.

Arpaio, 85, was convicted in July of criminal contempt of court for ignoring federal judges’ orders to stop detaining and abusing Latinos willy-nilly on unapologetically racial grounds. Arpaio was about to face a sentencing hearing when Trump, invoking his powers under Article II of the federal constitution, annulled the conviction. Judge Bolton cancelled the hearing, but took the unusual step of asking for briefs from both Arpaio’s lawyers and the prosecution on whether she should proceed with the process anyway.

This is already a little surprising, since the presidential power to pardon federal offences has always been treated as quite absolute and unconditional. Its justification by Alexander Hamilton (him again?!) in Federalist no. 74 is treated as almost self-evident: “the benign power of pardoning,” Hamilton wrote, “should be as little as possible fettered or embarrassed.” Then-Republican presidential candidate Donald Trump with Joe Arpaio at a campaign event in Iowa in 2016.

Hamilton insisted strongly that this “benign power” is best exercised by a single individual. In one of those highflown Hamiltonian promises that may fall a little flat in our time, he argued: “The reflection that the fate of a fellow-creature depended on (the President’s) sole fiat would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind.”

It is perhaps natural to chuckle at this, but a few lawyers think Judge Bolton can actually demonstrate and use a judicial right to defy the President. Because the pardoning power’s great breadth has been accepted so universally, it has not been debated much at the highest level of American jurisprudence, despite being invoked upon thousands of occasions.

There is no precedent for a federal judge to tell a President to get bent, the argument goes — but there is also no precedent for a president to use the pardoning power to undermine the due process rights of citizens that were added to the U.S. Constitution later.

On this theory, the pardoning power in Article II must be “read alongside” the Bill of Rights and the equal-protection clause in the Fourteenth Amendment, and must be construed so as to protect those individual rights. Trump’s action is supposed to be special and unprecedented for two reasons. One is that it has happened early in his presidency: it may thus encourage agents of American law to run wild for the remainder of his term. The other is that Trump is reversing a contempt of court conviction, and thus indulging in a particular, novel attack on the role of courts in interpreting the federal Constitution.

This theory, I suspect, may wreck upon actual historical examples of presidential shamelessness in the use of pardons. To take an obvious one: how, upon this theory, are we to regard President Ford’s pardon of his precursor Richard Nixon? Was it in some sense unconstitutional for Ford to accept the office of the presidency and protect the man who made way for him from the ordinary operation of criminal law? Nixon never accepted his guilt, any more than Joe Arpaio has.

There is often precedent for things the that thinktankers and publicists call “unprecedented,” and there are certainly some dubious moments in the record of presidential pardons. In the year 1900, a Canadian-born gentleman named Alexander McKenzie (1851-1922), the political boss of North Dakota, exploited the Nome Gold Rush by having buddies appointed to the federal court in Alaska, travelling personally to the remote tent city, walking in, and simply taking over the best local gold mines as a court-selected receiver. This led to a tugof-war with the higher circuit court in San Francisco: McKenzie happily stashed the gold until he was finally convicted of contempt in the lower 48, and nabbed by federal marshals.

The doomed President McKinley pardoned his fellow Republican McKenzie almost immediately. This was certainly an instance of a president encouraging the lawless use of government power, and of sending a repulsive “message” to overenthusiastic partisans.

Or consider the case of Mark Felt (1913-2008), the FBI official now best known as Woodward and Bernstein’s Watergate leaker “Deep Throat.” Felt oversaw the bureau’s COINTELPRO program, ordering unconstitutional break-ins at the homes and offices of persons thought to be friendly to fugitives. This was not a property case or an ordinary crime: Felt and his colleague Edward S. Miller were convicted specifically, in November 1980, of conspiring to violate civil rights.

Reagan pardoned the duo within three months, which led to the mindboggling spectacle of Dick Nixon sending Deep Throat a bottle of champagne with a note reading “Justice ultimately prevails.” Reagan’s right to pardon glorified police investigators running amok was not questioned: no one talked of his action as grounds for impeachment. No one, I dare say, even remembers it when they are reciting Reaganite misdeeds.

Why is the National Post throwing away nearly 20 years of principled opposition to political Islam? Like Captain Renault in Casablanca, why is it pretending to be shocked, shocked that conservatives believe in the separation of mosque and state?

If the Post can indulge in a baseless conspiracy theory that this is all because The Rebel is secretly owned by some anti-Islam tycoon (we’re not — we’re 100 per cent owned by staff, and no single donor has given us more than 2 per cent of our funds), then perhaps I can simply repeat what I have read in the Post itself: that for the past 18 months, Postmedia management has been lobbying for major financial assistance from Justin Trudeau.

Abandoning two decades of editorial principle and attacking The Rebel would surely please Trudeau. But that’s probably just another one of my “extreme, farright” theories.