Judge Bolton convicted Arpaio of criminal contempt. She found he had “willfully violated” the federal court’s order “by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” And she held that Arpaio had “announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.”
This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution.
It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society.
It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy, the way George H.W. Bush pardoned the Iran-Contra participants, including Oliver North.
But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.
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From this analysis it follows directly that pardoning Arpaio would be a wrongful act under the Constitution. There would be no immediate constitutional crisis because, legally speaking, Trump has the power to issue the pardon.
But the pardon would trigger a different sort of crisis: a crisis in enforcement of the rule of law.
The Constitution isn’t perfect. It offers only one remedy for a president who abuses the pardon power to break the system itself. That remedy is impeachment.
James Madison noted at the Virginia ratifying convention that abuse of the pardon power could be grounds for impeachment. He was correct then – and it’s still true now.
Arpaio Pardon Would Show Contempt for Constitution
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