On September 13, 2017, the Center for Human Rights & Humanitarian Law and the Program on Law & Government co-sponsored a rapid response event on the pardon power, specifically to discuss the recent pardon of former sheriff Joe Arpaio. The event looked at the scope of the pardon power and its implications for the rule of law through the perspectives of constitutional law, criminal law, and international law. Professor Fernando Laguarda moderated and Professors Bob Goldman, Ira Robbins, Michael Tigar, Herman Schwartz spoke.
Professor Schwartz started by discussing the scope of the Presidential pardon power. He explained that the only offenses that the President can pardon are federal offenses. He further explained that a pardon is substantially different than a commutation of sentence. While a commutation of sentence shortens the time in prison, a pardon entirely forgives the crime. The Presidential pardon initially was used in the aftermath of the Civil War. Following the war, the Supreme Court, in a 5-4 decision for United States v. Klein, read the pardon power very broadly, allowing the President to “forgive the pour soul for taking up arms against the United States.” The pardon power has since been expanded, but it still remains that pardoning a person does not remove the offense or conviction from the person’s criminal record. Rather, both the federal offense and presidential pardon will be on his or her record.
Professor Schwartz also discussed the history of Joe Arpaio’s legal troubles. In December 2011, a federal judge entered a preliminary injunction against Arpaio and the Maricopa Countyeriff’s Office, which ordered Arpaio to stop detaining anyone not suspected of a state or federal crime. In 2015, Arpaio was found guilty of civil contempt of court by two federal judges who found that Arpaio was not abiding by the injunction. He also made multiple intentional misstatements of fact while under oath. In early 2017, President Trump spoke to Attorney General Jeff Sessions and asked him to drop the charges against Arpaio. When Sessions said they could not drop the charges, the President said he would pardon Arpaio. The President pardoned Arpaio on 25 August 2017.
Professor Robbins discussed the differences between a pardon, a commutation of sentence, amnesty, and clemency. He initially started discussing that while Arpaio was pardoned for his federal crimes, the pardon does not extend to any state crimes. This means that any state investigations can still lead to criminal charges, which the President has no ability to pardon.
Robbins also posed the question, “Can the President pardon himself?” He explained that there is no explicit answer to that question, but that he likely could as long as he is not pardoning himself for impeachable reasons. However, Robbins explained that it would be far more likely for the incoming president to pardon the outgoing president, like President Ford did for President Nixon. He also focused on the growing Russia scandal involving former National Security Advisor Flynn and the Senior Advisor to the President, Jared Kushner. Robbins explained that if they are pardoned and required to testify, they are still required to testify under oath. They can not use the right against self-incrimination (the Fifth Amendment) to avoid answering questions. Therefore, if the President pardons them, they still have to answer the questions, which could incriminate other people, including the President.
Professor Tigar explained that we should look at the Supreme Court’s interpretation of the Presidential pardon. The Supreme Court focused on the fact that the Presidential pardon originated from the British King’s “royal prerogative of mercy.” He explained that in one important Supreme Court case, Ex Parte Grossman, Grossman was selling liquor in violation of the National Prohibition Act. He violated a federal court injunction by continuing to sell alcoholic beverages and was found guilty of criminal contempt of court. In 1923, President Coolidge pardoned Grossman. The Supreme Court found that a presidential pardon for a criminal contempt of court sentence was within the powers of the executive. In comparison, Joe Arpaio’s case was brought under civil rights laws, which are federal. Therefore, the President is allowed to pardon him. However, Arpaio can still be criminally charged for the crimes under state laws.
Professor Goldman focused on the international law aspect and the distinction between amnesty and pardon. He explained that, internationally, amnesty is the means for getting a crime forgotten. Goldman explained that the Second Protocol to the Geneva Conventions actually calls for the authorities to grant the “broadest possible amnesty to persons who have participated in armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.” He further explained that amnesty is usually a legislative process, while a pardon is almost always an executive process. Goldman also discussed that amnesty is frequently given by military autocracies to protect themselves from punishment of the crimes they have committed while in power.
Since the President pardoned former sheriff Joe Arpaio, there have been a number of questions brought up regarding the legality of the Presidential pardon. On August 28, 2017, Arpaio’s attorneys asked District Court Judge Bolton to vacate his criminal contempt of court conviction in light of the pardon. In response, Judge Bolton ordered Arpaio and the U.S. Department of Justice to file briefs on why she should or should not grant Arpaio’s request. Several activist groups, including Protect Democracy, have raised concerns about the ability to pardon someone convicted of violating constitutional rights. On October 4, 2017, the day before Arpaio was supposed to be sentenced, U.S. District Judge Susan Bolton dismissed the case against Arpaio with prejudice, meaning it cannot be reinstituted.