Volume 18
Issue
1
Date
2020

Can a Presidential Pardon Trump an Article III Court’s Criminal Contempt Conviction? A Separation of Powers Analysis of President Trump’s Pardon of Sheriff Joe Arpaio

by Sanya Shahrasbi

James Madison once reflected that the great difficulty of government is to first enable it to “control the governed” and next “oblige it to control itself.”1 His most famous phrase “ambition must be made to counteract ambition,” has shaped the checks and balances of our modern government.2 Three separate branches of government granted equal powers and created to keep each other in check. To ensure this division, the Constitution vests specific powers to each individual branch of government. One specific power—the pardon power—the Framers bestowed solely to the President and made unreviewable by any other branch of government. Specifically, the Constitution reads that the President has the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”3 As precedent supports, and many scholars argue, the pardon power is quite broad. But surely the Founding Fathers did not envision the power to encroach on another branch’s power? This paper explores the scope of the presidential pardon power in relation to the powers of an Article III court and argues that the President violates the separation of powers principle by pardoning an individual held in criminal con-tempt of court. It is particularly relevant to analyze this question as impeachment inquiries loom and scholars assess whether President Donald Trump has in fact overstretched his Article II powers. To analyze this constitutional question this paper centers around President Trump’s pardon of Sheriff Joe Arpaio. It explores the intent of the Founding Fathers when creating the pardon power and then examines the criminal contempt power as an inherent and vital power of an Article III court. Next, it analyzes how the pardon of Sheriff Arpaio for criminal contempt is distinguishable from precedent because of its unconditionality, the President’s intent, and the injunction underlying the contempt order. And lastly, it discusses whether a case that challenges the constitutionality of the presidential pardon is justiciable.

Keep Reading Can a Presidential Pardon Trump an Article III Court’s Criminal Contempt Conviction? A Separation of Powers Analysis of President Trump’s Pardon of Sheriff Joe Arpaio

Subscribe to GJLPP