What to Know About a Pardon
Pardon: Recently, President Donald Trump formally pardoned Joe Arpaio, a former Arizona Sheriff who was found guilty of criminal contempt; his charges stemmed from defying a court order to stop detaining immigrants based purely on the suspicions that they might be in the United States illegally. In more succinct terms, Arpaio was found guilty of violating the Constitution by using racial profiling, and then ignoring a judge’s order to stop.
When it comes to contempt, there are three types: direct, civil, and criminal. Direct contempt is quite rare and happens when someone disrupts a judicial proceeding in front of the judge. Civil contempt is typically used to force someone to take action or to stop someone from engaging in a pattern of conduct (i.e. withholding children from the other parent.) Criminal contempt, of course, is designed to punish specific instances of misconduct. Joe Arpaio was found guilty of criminal contempt.
President Trump’s decision to pardon Arpaio was certainly questionable, but was completely lawful. Article II, Section 2, Clause 1 of the Constitution states, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The President’s power can only be used to pardon someone for a federal crime, not a state crime. In this instance, Joe Arpaio committed a federal crime.
“Arpaio didn’t just violate a law passed by Congress,” explains Noah Feldman, a Harvard Law professional. “His actions defied the Constitution itself, the bedrock of the entire system of government.” By displaying that Arpaio’s offense was forgivable, Professor Feldman added that Mr. Trump threatens “the very structure on which his right to pardon is based.”
Typically, when someone is seeking a pardon, they must go through a long and arduous process that begins with the pardon attorney in the Justice Department. The department recommends that anyone seeking pardons wait at least five years after conviction and demonstrate their remorse and regret for what they’ve done. Arpaio, of course, did none of this. And, Trump pardoned him before he was even sentenced.
Unfortunately, there are very few ways to take action against a President who issues a controversial pardon. “This power of the President is not subject to legislative control,” the Supreme Court outlined in 1866. “Congress can neither limit the effect of his pardon, nor exclude from its exercise with any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”
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