# Was the Arpaio pardon unconstitutional? **URL:** \ **Category:** Great Debates\ **Created:** [May 14, 2018, 1:02pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129 "2018-05-14T13:02:21Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [May 14, 2018, 1:02pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/1 "2018-05-14T13:02:21Z")
> **[Trump's pardon of Joe Arpaio might have been unconstitutional](https://www.motherjones.com/politics/2018/05/how-a-court-ruling-on-joe-arpaio-could-undermine-civil-rights-and-the-mueller-investigation/)** > > The court case over it has huge implications—for the Mueller investigation. > [@](#): > > In 2011, a federal district court ordered Arpaio to stop arresting people suspected of being undocumented; two years later, the same court found that he had discriminated against Latinos and violated the 2011 order to stop targeting them. But Arpaio’s discriminatory policies continued. Finally, last year, a federal judge found him guilty of criminal contempt of court. But before he could be sentenced, Trump swooped in and pardoned him last August. > … > When Trump pardoned Arpaio, Martin Redish, a constitutional expert at Northwestern University’s law school, had just completed a book on the importance of an independent judiciary to safeguard constitutional rights. He saw Arpaio’s pardon as the perfect cautionary tale. LThe night before Trump officially pardoned the former sheriff, Redish penned a New York Times op-ed laying out the case for why the rumored pardon was unconstitutional. His argument was simple: The government cannot take away someone’s liberty without a court ruling under the due process clause of the Fifth Amendment. Pardoning Arpaio deprived Latinos in Maricopa County of that right—and undermined the court’s ability to protect individual rights. “\*f the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power,” Redish warned. is Redish right? Are there constitutional limits to presidential pardon powers? Can a president pardon a government official who has violated citizens’ constitutional rights, or do those constitutional rights outweigh the constitutional pardon power? ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [May 14, 2018, 1:23pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/2 "2018-05-14T13:23:10Z")
IANAL but - much as I’d like Arpaio’s pardon to be rescinded - I’m finding this argument a little speculative. Presumably, in order to test whether this is a reasonable interpretation of the Fifth Amendment someone with appropriate standing (and I’m not sure who that would be - the victims of Arpaio’s actions? Maricopa County itself?) would have to challenge it by some mechanism which would ultimately drag it up to and through the Supreme Court, with the potential risk that if successful the President’s power to pardon _anyone_ could be severely impacted forever. Even if it’s possible (and I don’t know that it is), that’d be a pretty heavy lift for an outcome that may not be ideal in the longer term. Plus who even knows whether Arpaio will live that long? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [May 14, 2018, 1:32pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/3 "2018-05-14T13:32:42Z")
> [@davidm](#): > > [How a Court Ruling on Joe Arpaio Could Undermine Civil Rights and the Mueller Investigation – Mother Jones](https://trib.al/wzU4PM4) > is Redish right? Are there constitutional limits to presidential pardon powers? … No and just one: > [@](#): > > … he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [May 14, 2018, 1:44pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/4 "2018-05-14T13:44:39Z")
Seems to me that this is another example of an attorney trying to make a case that a plain reading of the Constitution doesn’t mean what it actually and clearly says. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 14, 2018, 2:25pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/5 "2018-05-14T14:25:50Z")
Pardoning Arpaio was wrong but it wasn’t illegal or unconstitutional. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [May 14, 2018, 3:25pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/6 "2018-05-14T15:25:12Z")
> [@Little\_Nemo](#): > > Pardoning Arpaio was wrong but it wasn’t illegal or unconstitutional. I would agree > [@](#): > > His argument was simple: The government cannot take away someone’s liberty without a court ruling under the due process clause of the Fifth Amendment. Pardoning Arpaio deprived Latinos in Maricopa County of that right—and undermined the court’s ability to protect individual rights. The government would just have to find other ways to protect individual rights. Unfortunate, but not impossible. During Reconstruction, the US Government sent federal troops to Southern states were the rights of freed slaves were being trampled by the local sheriffs (and everyone else). ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 14, 2018, 3:36pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/7 "2018-05-14T15:36:42Z")
> [@](#): > > The government cannot take away someone’s liberty without a court ruling under the due process clause of the Fifth Amendment. Pardoning Arpaio deprived Latinos in Maricopa County of that right—and undermined the court’s ability to protect individual rights. I don’t see how the Latinos are being deprived of their rights. Maybe they were, but that guy was arrested and convicted. Maybe I have the right not to be kidnapped. But if they arrest the guy who kidnaps me and convict him, and he gets pardoned, I am no longer being kidnapped. The remedy of a pardon you don’t like is impeachment. If you don’t have the votes for impeachment, well, sux to be you. Regards, Shodan ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [May 14, 2018, 3:58pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/8 "2018-05-14T15:58:14Z")
> [@Shodan](#): > > The remedy of a pardon you don’t like is impeachment. If you don’t have the votes for impeachment, well, sux to be you. How would that “remedy” the pardon? I’m pretty sure there’s no way to “un-pardon” someone who has been legally pardoned, and as discussed already the argument that this particular pardon wasn’t legal is tenuous at best. All impeachment does is to prevent future pardons by that president. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 14, 2018, 4:49pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/9 "2018-05-14T16:49:10Z")
And that’s the best that can be done - i.e. the only remedy available. Impeachment is a check on the President, pardons are a check on the judiciary, the courts are a check on the President and the judiciary. Etc. The President has the power of pardon, except for impeachments. If you don’t like it, amend the Constitution. Regards, Shodan ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [May 14, 2018, 4:53pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/10 "2018-05-14T16:53:50Z")
> [@Shodan](#): > > I don’t see how the Latinos are being deprived of their rights. The basis of Arpaio’s crime was that the courts found pretty substantial civil rights violations, and when ordered to stop it, he did not. That led to the contempt charges. Arpaio’s defense seemed to consist of, I’m not the guy responsible for those civil rights violations; and then later agreed that he was in civil contempt of court. All that being said, the issue of whether there were civil rights violations is not in dispute. However, I agree that Arpaio not serving jail time does not translate into an additional civil rights violation. > [@Gyrate](#): > > How would that “remedy” the pardon? I’m pretty sure there’s no way to “un-pardon” someone who has been legally pardoned, and as discussed already the argument that this particular pardon wasn’t legal is tenuous at best. All impeachment does is to prevent future pardons by that president. Well, there just ain’t a remedy to a pardon. This is why it is important to select good people to exercise irrevocable decisions. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 14, 2018, 4:57pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/11 "2018-05-14T16:57:54Z")
Appeals and pardons are part of due process. You can’t deny them to accused people just as you can’t deny accused people the right to have a trial, confront witnesses, and present a defense. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 14, 2018, 8:08pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/12 "2018-05-14T20:08:37Z")
We could repeal the pardon power by amending the constitution and there would still be a due process clause, so I don’t think that pardons are considered part of “due process”. A pardon is it’s own thing, separate and apart from due process. ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [May 14, 2018, 8:43pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/13 "2018-05-14T20:43:18Z")
> [@John\_Mace](#): > > We could repeal the pardon power by amending the constitution and there would still be a due process clause, so I don’t think that pardons are considered part of “due process”. A pardon is it’s own thing, separate and apart from due process. It could be said (it isn’t said of course, but it’s true if you think about it) that presidential pardons are - because of how they work - UNdue process. They are supposed to be for when due process has failed for some reason. I don’t think due process failed Arpaio at all, but I’m not president of anything. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [May 14, 2018, 8:57pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/14 "2018-05-14T20:57:08Z")
> [@Shodan](#): > > I don’t see how the Latinos are being deprived of their rights. Maybe they were, but that guy was arrested and convicted. > > Maybe I have the right not to be kidnapped. But if they arrest the guy who kidnaps me and convict him, and he gets pardoned, I am no longer being kidnapped. > > The remedy of a pardon you don’t like is impeachment. If you don’t have the votes for impeachment, well, sux to be you. > > Regards, > Shodan Well, with this attitude, the obvious approach would be to quietly wait until Trump leaves office, and then have their replacement shout that anybody who murders Joe will be pardoned of any and all charges associated with the event, up to and especially including torture. That would, of course, be perfectly okay. Right? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [May 14, 2018, 9:18pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/15 "2018-05-14T21:18:18Z")
> [@begbert2](#): > > Well, with this attitude, the obvious approach would be to quietly wait until Trump leaves office, and then have their replacement shout that anybody who murders Joe will be pardoned of any and all charges associated with the event, up to and especially including torture. > > That would, of course, be perfectly okay. Right? Do you think torture and murder would be appropriate punishments for contempt of court? ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [May 14, 2018, 9:19pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/16 "2018-05-14T21:19:29Z")
> [@Shodan](#): > > I don’t see how the Latinos are being deprived of their rights. Maybe they were, but that guy was arrested and convicted. > > Maybe I have the right not to be kidnapped. But if they arrest the guy who kidnaps me and convict him, and he gets pardoned, I am no longer being kidnapped. > > The remedy of a pardon you don’t like is impeachment. If you don’t have the votes for impeachment, well, sux to be you. > > Regards, > Shodan But there’s also steps short of impeachment. Like, for instance, complaining that the president shouldn’t have pardoned this person. Making the president pay a political price for his wrong actions, even if that price isn’t impeachment, is perfectly appropriate. Every vote in Congress is a change to deliver appropriate correction to an out of control executive. The President’s power to pardon for offenses against the United States is unreviewable, sure. And if his party pays a price–short of impeachment–for his irresponsible exercise of that power, then sux to be them. So my response to this pardon is to vote against each and every Republican in each and every office in my district, and to urge everyone else everywhere else to do the same. Will that get Trump impeached? Maybe, maybe not, but a Trump that has massive opposition in the Legislature is going to find his opportunities for mischief limited compared to a Trump with a supine and corrupt Legislature. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [May 14, 2018, 9:21pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/17 "2018-05-14T21:21:51Z")
> [@Lemur866](#): > > … So my response to this pardon is to vote against each and every Republican in each and every office in my district, and to urge everyone else everywhere else to do the same. … I strongly suspect you were going to do that anyways, regardless of the pardon. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [May 14, 2018, 9:23pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/18 "2018-05-14T21:23:13Z")
> [@HurricaneDitka](#): > > Do you think torture and murder would be appropriate punishments for contempt of court? How do you Republicans put it? “If you don’t have the votes for impeachment, well, sux to be you”? Is that it? Of course the flaw in this plan is that murder is a state crime, and the president only has the power to pardon for offenses against the United States. So for the same reason that Trump can’t pardon financial shenanigans that are crimes against the State of New York, some hypothetical future president can’t pardon murders that take place in Arizona. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [May 14, 2018, 9:25pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/19 "2018-05-14T21:25:42Z")
> [@HurricaneDitka](#): > > I strongly suspect you were going to do that anyways, regardless of the pardon. Bullshit. I used to vote for Republicans regularly. Fuck, I voted for Bush in 2000. Show me some Republicans who can credibly promise to vote against Trump and I’ll vote for them. Except such people don’t exist in 2018. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [May 14, 2018, 9:28pm UTC](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129/20 "2018-05-14T21:28:54Z")
> [@HurricaneDitka](#): > > Do you think torture and murder would be appropriate punishments for contempt of court? No, but I also don’t think that “Fuck you, ha ha” is an appropriate response to the fact that nobody can keep Trump and his cronies from pissing on the law. [Next page](https://boards.straightdope.com/t/was-the-arpaio-pardon-unconstitutional/814129.md?page=2)