Laurence H. Tribe is university professor and professor of constitutional law at Harvard Law School. Ron Fein is the legal director of Free Speech for People, which has filed an amicus brief in the Arpaio case.
A federal judge in Arizona will soon consider whether to overturn President Trump’s pardon of former Arizona sheriff Joe Arpaio. The answer to this question has consequences not just for Arpaio and the people he hurt but also for the entire country. And although the conventional legal wisdom has been that a presidential decision to grant a pardon is unreviewable, that is wrong. In this circumstance, Trump’s decision to pardon Arpaio was unconstitutional and should be overturned.
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Now imagine a president such as Trump pardoning the governor for contempt, while praising him, as Trump lauded Arpaio, for “doing his job.”
The message to segregationist officials would have been clear: just ignore federal court integration orders; the president will have your back if the court tries to enforce them through its contempt power.
No official could have failed to hear that message in the Arpaio pardon. Nor could have any Trump associate in possession of evidence bearing on criminal or impeachable activity by the president. The signal to them all is: You can treat any court order to testify, even with a grant of immunity, as a friendly request and politely decline. You can count on a pardon to protect you from criminal prosecution.
Is this use of the pardon power constitutional? In most cases, however controversial, courts should not second-guess the president’s use of the pardon power. But when the Constitution says that the president “shall have Power,” that does not mean unlimited power. It means power that is not inconsistent with other parts of the Constitution.
