Professor Jamal Greene Discusses Presidential Pardons

Arpaio pardon highlights “tension with the rule of law,” Greene notes.

President Trump on Friday pardoned Joe Arpaio, the former sheriff of Maricopa County, Arizona, who in July was convicted of criminal contempt for disregarding the order of a federal court to discontinue his department’s practice of stopping and detaining Latinos at random based entirely on suspicion of their immigration status.

Though the Constitution gives the president broad power to grant pardons, the pardon of Arpaio, the first of Trump’s presidency, departed in some ways from the process followed by his predecessors and sparked criticism for absolving an official who flouted an effort by the judiciary to enforce the Constitution.

Professor Jamal GreeneStill, a pardon by its nature runs up against the rule of law, notes Jamal Greene, the Dwight Professor of Law at Columbia Law School, whose research and writing focus on the Supreme Court and constitutional law. His article, “Trump as a Constitutional Failure,” will be published by the Indiana Law Journal in 2018.

In the Q&A that follows, Greene discusses some of the issues at stake in the pardon of Arpaio. The interview was edited lightly for clarity and space.

How broad is the pardon power?

The pardon power is, on its face, broad and unlimited as to federal offenses, except for cases of impeachment. Broad constitutional provisions of this sort can develop implicit limitations over time based on settled practice. For example, a mass prospective pardon of hypothetical violators of the law might run into separation of powers limits that I would characterize as constitutional in nature. Importantly, though, the most obvious remedy for abuses of that sort is impeachment.

Some scholars have suggested there may be constitutional concerns when a pardon undermines the ability of the courts to enforce the Constitution. How might we think about the issue?

Use of the pardon to excuse violations of the constitutional rights of others is problematic, but I would hesitate to read that limitation into the pardon power itself. A pardon is, in its nature, in tension with the rule of law. I don't see a principled way to distinguish among various substantive underlying offenses. I think the register in which to criticize the use of the pardon power against someone like Joe Arpaio is a moral register rather than a constitutional one.

Critics charge that the pardon of Arpaio suggests a disregard by the president for the rule of law—that the framers of the Constitution intended for the power to be exercised with care. How do you see it?

I agree that pardoning Arpaio, among other actions of this president, suggests a disregard for the rule of law. It should be criticized on that basis, and it has been. But the powers of the presidency are vast, which is why elections matter so much. The primary remedies for presidential overreach are political: congressional oversight, legislation curtailing his power, removal through electoral loss, or impeachment.

Further reading

Trump and the Decline of the American Middle

The Trump Administration and the Rule of Law

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Posted on August 28, 2017

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