Wall Street Journal (Opinion)
By William A. Galston
August 29, 2017
President Trump’s decision last Friday to pardon Joe Arpaio sparked a predictable firestorm. As the partisan brickbats fly—as they do after every high-profile pardon—it’s important to stay focused on the troubling details that set this specific case apart.
By pardoning the former sheriff after his criminal conviction for contempt of court, Mr. Trump acted well within his constitutional authority—even though Mr. Arpaio had not yet been sentenced. More than 150 years ago, in what remains the leading decision on this subject, the U.S. Supreme Court in Ex parte Garland (1867) stated that the president’s pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”
Each time a president issues a controversial pardon, the American people rediscover the odd power that seems to cut against the spirit of the rest of the Constitution. It is a broad, unreviewable power vested in a single individual—entirely free of checks or balances. And yet, this apparent aberration was an intentional addition by the Constitution’s framers, who debated and decisively rejected a role for the Senate in granting pardons.
Alexander Hamilton devoted a substantial portion of Federalist No. 74 to defending the provision. “Humanity and good policy,” he argued, “conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered.” And a single decision maker, he continued, would be more likely to be guided by the right kinds of considerations as well as a strong sense of responsibility in exercising this power.
Hamilton did not see the pardon as a challenge to the rule of law, but the reverse—a correction of law’s inherent imperfection. “The criminal code of every country partakes so much of necessary severity,” he wrote “that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” The pardon was created as a way of tempering justice with mercy. It is, wrote the great Chief Justice John Marshall in U.S. v. Wilson (1833), “an act of grace.”
This raises the first point of genuine controversy in the Joe Arpaio case. President Trump did not seek to justify his pardon as an act of mercy or grace. Rather, he portrayed it as reversing an injustice. At his rally in Phoenix last week, he posed a rhetorical question to a supportive crowd: “So was Sheriff Joe convicted for doing his job?” And in a tweet shortly after issuing the pardon, he characterized Mr. Arpaio as an “American patriot” who “kept Arizona safe.” The president disregarded the court’s finding that the sheriff was doing his job in an illegal manner and that the law specifies not only the ends of public policy but also the permissible means. Mr. Trump’s action tacitly endorses the proposition that the ends justify the means, which is a direct challenge to the rule of law.
The best-known use of the presidential pardon came in 1974, when President Gerald Ford pardoned former President Richard Nixon. He justified his action in part by the tradition Hamilton had cited. “Surely we are not a revengeful people,” Ford said. Nixon “already is condemned to suffer long and deeply in the shame and disgrace brought upon the office he held.”
But Ford’s principal argument was an appeal to the national interest. The country confronted profound challenges at home and abroad, he contended. Americans needed to focus on these challenges, and the divisive trial of a fallen president would divert them from rising to the occasion.
Ford made these arguments in the statement with which he began his historic and entirely voluntary appearance before the House Judiciary Committee. In the course of his remarks, he answered 10 questions the committee had posed to him a month before his hearing. Conducting himself like any other witness, the president followed his statement by answering dozens of questions posed by committee members, some of which were decidedly hostile.
Ford’s testimony underscored the notion that although there is no legal basis for overturning a presidential pardon, the president is nonetheless publicly accountable for his decision. Much as the drafters of the Declaration of Independence owed mankind a justification of the act of separation, Ford felt a similar obligation to Congress and the American people.
Does Mr. Trump feel any such obligation? Is he willing to answer questions—in writing and in person—about his pardon of Joe Arpaio? If not, it will be hard to resist the conclusion that he issued the pardon to send a message to his core supporters and to free those charged with enforcing immigration laws from legal restraints. If this isn’t an abuse of power, what is?
Appeared in the August 30, 2017, print edition.
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