Can a Presidential Pardon Trump an Article Iii Court’s Criminal Contempt Conviction? a Separation of Powers Analysis of President Trump’s Pardon of Sheriff Joe Arpaio

Can a Presidential Pardon Trump an Article III

Court’s Criminal Contempt Conviction?

A Separation of Powers Analysis of President

Trump’s Pardon of Sheriff Joe Arpaio

SANYA SHAHRASBI*

ABSTRACT

James Madison once ref‌lected that the great diff‌iculty of government is to f‌irst

enable it to “control the governed” and next “oblige it to control itself.”

1

His

most famous phrase “ambition must be made to counteract ambition,” has

shaped the checks and balances of our modern government.

2

Three separate

branches of government granted equal powers and created to keep each other

in check. To ensure this division, the Constitution vests specif‌ic powers to each

individual branch of government. One specif‌ic power—the pardon power—the

Framers bestowed solely to the President and made unreviewable by any other

branch of government. Specif‌ically, the Constitution reads that the President

has the “Power to grant Reprieves and Pardons for Offenses against the United

States, except in Cases of Impeachment.”

3

As precedent supports, and many

scholars argue, the pardon power is quite broad. But surely the Founding

Fathers did not envision the power to encroach on another branch’s power?

This paper explores the scope of the presidential pardon power in relation

to the powers of an Article III court and argues that the President violates the

separation of powers principle by pardoning an individual held in criminal con-

tempt of court. It is particularily relevant to analyze this question as impeach-

ment inquiries loom and scholars assess whether President Donald Trump has

in fact overstretched his Article II powers. To analyze this constitutional ques-

tion this paper centers around President Trump’s pardon of Sheriff Joe Arpaio.

It explores the intent of the Founding Fathers when creating the pardon power

and then examines the criminal contempt power as an inherent and vital power

of an Article III court. Next, it analyzes how the pardon of Sheriff Arpaio for

criminal contempt is distinguishable from precedent because of its uncondition-

ality, the President’s intent, and the injunction underlying the contempt order.

And lastly, it discusses whether a case that challenges the constitutionality of

the presidential pardon is justiciable.

* Georgetown University Law Center, J.D. 2019; University of California, Berkeley, B.A. 2015.

© 2020, Sanya Shahrasbi. The author wishes to thank Paul Clement and Lisa Blatt, in whose seminar

she received invaluable feedback and developed this Note.

1. THE FEDERALIST NO. 51 (James Madison).

2. Id.

3. U.S. CONST. art. II, §2, cl. 1.

207

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

I. THE CRIMINAL CONTEMPT POWER IS INHERENT TO AN ARTICLE III

COURT AND CANNOT BE RENDERED “PRACTICALLY INOPERATIVE” 212

II. THE ARPAIO PARDON IS DISTINGUISHABLE FROM THE PRECEDENT

IN EX PARTE GARLAND AND EX PARTE GROSSMAN . . . . . . . . . . . . 215

III. POTENTIAL JUSTICIABILITY HURDLES FACING PARDONS FOR

CRIMINAL CONTEMPT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

INTRODUCTION

Like many other provisions in the U.S. Constitution, the pardon power

stems from our English heritage.

4

Historically, English Kings had almost

unlimited power to pardon.

5

The power served as the sole instrument of

justice, as the courts did not have the power to acquit.

6

When time came to

draft the Constitution, Alexander Hamilton, Charles Pinckney, and John

Rutledge fought for the inclusion of an executive pardon power to mirror that

of the King’s.

7

Specif‌ically, they fought for a pardon power vested in the ex-

ecutive and only applicable towards federal offenses and convictions beside

impeachment.

8

There was considerable discussion surrounding this power. Roger Sherman of

Connecticut tried to limit the power by requiring the consent of the Senate.

9

This

motion was rejected by George Mason, who argued that the Senate already had

too much power.

10

Moreover, the Founders debated whether “after conviction”

should be included after “reprieves and pardons” in the clause, but James Wilson

convinced the others that a pardon before conviction might be necessary to obtain

the testimony of accomplices.

11

Thus, the Founders excluded the requirement

that the pardon be granted solely “after conviction.” There was also ample discus-

sion by Edmund Randolph about amending the Articles to exclude cases of

4. William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 WM. & MARY

L. REV. 475, 475–509 (1977).

5. Id. at 476–79.

6. Id. Interestingly, Kings used the pardon power as a method of conscription for their frequent wars.

Pardons could also be bought by the wealthy. Id. at 478

7. Id. at 501.

8. Id.

9. Id.

10. Id.

11. Id. at 502.

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