As our Monday editorial explains, there are several problems with President Trump’s highly objectionable pardon of former sheriff Joseph Arpaio. I want to address a couple of them in more depth — one here and one in a subsequent column.
The latter will deal with abuse of the pardon power. It dovetails with arguments I’ve made about the “obstruction” aspect of the Mueller investigation — specifically regarding how our constitutional design counters a president’s abuse of prosecutorial-discretion powers (of which, I contend, the pardon power is one).
For now, I want to home in on the decidedly unpresidential impulsiveness of the pardon. I happen to believe Arpaio, formerly the top lawman in Maricopa County, Ariz., was a very undeserving pardon candidate. But even if one believed he was a fitting candidate, pardoning him at this stage was rash.
Premature Stage of the Proceedings
Arpaio’s conviction is not even final yet. A judge just found him guilty on July 31. In federal criminal procedure, a judgment of conviction is not entered when a guilty verdict is announced. There is no formal conviction until a sentence is imposed. Arpaio was not scheduled to be sentenced until October. In the interim, his defense was entitled to file post-trial motions attacking the verdict and seeking a new trial.
While these motions are nearly always denied, they are an important part of the process, further sharpening issues that will be raised on appeal. And appeal is the salient point here: Having been found guilty of criminal contempt by a federal district court in Arizona, Arpaio was entitled to appeal to the Ninth Circuit U.S. Court of Appeals and, ultimately, to the Supreme Court. Under federal law, his conviction would not have been considered final until he exhausted this direct appeal process, which could have taken a couple of years.
Before we get to the grist of the appeal, it is worth noting that the pardon issued by the president is so premature that Arpaio would not even have been eligible to apply for clemency under the executive-branch rules promulgated by the Justice Department’s pardon attorney. Because a demonstration of contrition and a commitment to living a law-abiding life have always been thought an important part of earning a pardon for a crime one has committed, the rules prescribe a five-year waiting period before one may petition. The time frame does not begin until any prison sentence has been served (if one is imposed).
Arpaio is 85 years old. The Justice Department would probably have considered shortening the five-year time frame, as the rules do provide for waivers in appropriate cases. That said, it is inconceivable that DOJ would have entertained a pardon petition, even from an elderly convict, at a time when no conviction had been formally entered, no sentence had been imposed, and no appellate review had occurred.
Concededly, DOJ’s pardon standards do not bind a president. Ideally, though, the standards should be followed, since they are designed to ensure that the president exercises his judicially unreviewable power prudently. If the president circumvents the standards — as Clinton did in his more notorious pardons in 2001 – the probability is that he is abusing his power.
Now, let’s turn to the appeal.
In the weeks since Arpaio was found guilty of contempt, based on evidence largely consisting of his own defiant statements, his defense team and media apologists have been adamant that his conviction would be overturned. His trial, they insist, was plagued by two fundamental errors that screamed out for reversal. First, he was denied a jury trial — i.e., despite his pleas to be tried by a jury of his peers, he was subjected to a “bench trial” in which the judge performed the fact-finding role. Second, in flouting court orders, he was acting on advice of counsel, and thus lacked the mens rea (the mental element of a criminal offense) required for a contempt conviction.
Arpaio’s defense team and media apologists were adamant that his conviction would be overturned.
Criminal contempt is a very peculiar crime in that the underlying law does not prescribe a prison term. Most criminal statutes provide a range of permissible punishment, say, 0–20 years. In contrast, the criminal-contempt statute (Section 401 of the federal penal code) leaves sentencing to the discretion of the judge. This discretion is broad but not limitless; a sentence that is too severe may be modified on appeal.
The Jury-Trial Demand
Sheriff Arpaio demanded a jury trial. The Justice Department opposed this demand — a position DOJ maintained even after President Trump took office and his attorney general, Jeff Sessions, was sworn in. District Judge Susan Bolton, who eventually found Arpaio guilty, denied the motion. Judge Bolton, a Clinton appointee, had come to national attention in 2010 when she invalidated Arizona’s immigration law.
(To be clear, Bolton was not the judge whose orders Arpaio was accused of contemptuously disobeying — that was Judge Murray Snow. The case was assigned to Judge Bolton for the contempt proceedings on the theory that the trial would be more fair if not presided over by the judge against whom the contempt was directed.)
If we just look at the words of the Constitution, Arpaio’s demand for a jury trial seems valid. Article III provides, in pertinent part (my italics): “The trial of all Crimes, except in cases of Impeachment, shall be by Jury.” The Sixth Amendment reaffirms this safeguard: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Incontestably, criminal contempt is a crime that is subject to criminal prosecution.
Yet the Supreme Court has consistently held that “all” does not really mean all in this context. In Duncan v. Louisiana, a 1968 ruling that applied the Constitution’s jury-trial guarantees to the states, the High Court explained: “It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.” Two years later, in Baldwin v. New York, a divided Supreme Court defined this category of “petty” offenses not requiring a jury trial as those for which a potential sentence of six months or less was prescribed. Tellingly, only two justices in Baldwin opined that “all” meant all. Indeed, three dissenting justices were prepared to uphold a conviction, despite denial of a jury trial, for a defendant sentenced to a year in prison.
Over two decades later, in the 1996 case of Lewis v. United States, the Court reaffirmed that there is no entitlement to a jury trial for petty offenses, even if multiple petty offenses are tried at the same time (meaning the combined sentence could exceed six months). It is noteworthy that the Court’s staunchest originalists, Clarence Thomas and the late Antonin Scalia, were in the majority. If the Framers had not understood the common-law distinction between petty and serious crimes to be implicit in the Constitution’s jury-trial guarantee, it is hard to imagine these justices’ concurring in the Lewis opinion.
This is why Judge Bolton, at the Justice Department’s urging, denied Arpaio’s motion. As the Arpaio camp counters, however, the matter is not so cut and dried. After all, criminal contempt is not a petty offense; in the abstract, a court has the power to sentence a convicted contemnor to more than six months’ imprisonment. In Arpaio’s case, however, the Justice Department and the court attempted to turn contempt into a petty offense by denying the jury trial, which had the effect of capping Arpaio’s sentence at six months. Ordinarily, it is the nature of the offense, not an agreed-upon sentencing cap, that determines whether a crime is petty. Moreover, the court and prosecutors did not treat Arpaio’s offense as petty in any other sense.
The sheriff thus had a point when he claimed that these machinations were undertaken for no other reason than to deny him a jury of his peers. There is a good argument that this is a particularly bad thing to do in a contempt-of-court prosecution: Such a crime involves behavior insulting to the bench; therefore, a jury should be required to avoid the appearance that the verdict was tainted by judicial bias.
In any event, while Arpaio had a colorable constitutional claim, we should note his strategic reason for positing it. Many defendants charged with contempt would be happy to trade the right to a jury trial for a guarantee that, if convicted, the sentence would not exceed six months. By contrast, banking on the personal popularity that won him several elections as well as significant public hostility to illegal immigration, Arpaio was confident he would not be found guilty by a unanimous jury of twelve Arizonans — they’d either acquit him or hang (the latter of which would pressure the Justice Department to dismiss the case rather than retry him). And on the off chance a jury did find him guilty, Arpaio no doubt calculated that, at age 85, he would not be sentenced to much more than six months in the slammer. For him, it was worth rolling the dice on the possibility of a longer sentence in order to demand the protection of a jury trial — and to create an appellate issue if the demand was denied.
The Mens Rea Claim
Now, let’s more briefly consider the second reversible error claimed by Arpaio’s defenders: the criminal-intent element that prosecutors must establish beyond a reasonable doubt. Criminal contempt requires prosecutors to prove a defendant acted willfully or contumaciously, meaning with an awareness that the actions taken were wrong, in violation of a clear court directive. Arpaio maintains that the prosecutor could not make this showing because he acted on the advice of counsel, and, in any event, the orders he was accused of violating were ambiguous.
The claim of ambiguity appears meritless in light of the sheriff’s proven defiance — flouting a 2011 injunction by detaining 171 aliens not suspected of a crime; braying that, because he was elected by the sovereign people, he was a higher authority in Maricopa County than federal law. But the advice-of-counsel claim, if true, could give an appellate court some pause. Some federal courts have held that good-faith reliance on a lawyer’s advice is a defense to criminal contempt, although the Ninth Circuit, whose precedents control Arpaio’s case, ruled in 1970 that it is not.
Undeserved, Unnecessary Pardon
All things considered, I would have put Arpaio’s chances of prevailing on appeal at no better than three in ten. I wouldn’t put much stock in the mens rea defense. The denial of a jury trial, though, is troubling.
I would have put Arpaio’s chances of prevailing on appeal at no better than three in ten.
Generally speaking, the Justice Department errs on the side supporting a defendant’s demand for a jury trial if there is any plausible basis for it. Here, there was. Criminal contempt is not inherently a petty offense. Judges should not unilaterally decide such cases. It is entirely right that they have the unilateral authority to jail defendants for civil contempt, which is designed not to punish but to incentivize the contemnor to end his bad behavior (comply with the order, get out of jail). But if the government wants to punish — if it instead goes the criminal-prosecution route — there should be a jury. It is common sense: When a judge is the alleged “victim,” a judge should not be the jury.
Still, while I find that argument persuasive, an appellate court would be inclined to back the lower court in a contempt-of-court case. I suspect the Ninth Circuit would be hostile to Arpaio and would rationalize that federal jurisprudence supported the lower court’s denial of a jury trial. I imagine, moreover, that the Supreme Court would have little interest in reviewing a half-century of undisturbed precedent.
Thus, in all likelihood, Arpaio would have lost his appeal. It is not certain, however, that he would have lost.
An Impetuous Pardon
Consequently, the president’s issuance of a pardon, which aborts the appellate process, is inexplicable. Even if Trump was convinced that Arpaio deserved clemency in light of what Trump sees as his unblemished record of heroic service to the nation, the pardon was wrong and politically fraught. Trump could have gotten away with commuting any sentence imposed on Arpaio — ensuring that he would not go to jail — because of the latter’s advanced age. A mere commutation would have kept the conviction in place.
A full pardon, on the other hand, extinguishes the wrong. It puts Trump in the position of endorsing Arpaio’s misconduct — a law officer’s arrogant defiance of lawful court orders, which themselves were issued as a result of judicial findings that Arpaio discriminated against Latinos in conducting unlawful arrests.
That would be politically fraught for any president. It is especially fraught for Trump in the wake of the botched response to the violence in Charlottesville and his history of intemperate remarks regarding Mexico and Gonzalo Curiel, the American federal judge of Hispanic descent who presided over the Trump University lawsuit. Pardoning the polarizing Arpaio was sure to delight Trump’s core supporters, but it was equally certain to anger much of the country.
No prudent president would make such a move except as a last resort (which is why, for example, most of Clinton’s unpopular pardons were issued on his way out the door). But the Arpaio pardon was not a last resort — not even close.
Trump did not give the system an opportunity to work. On that score, it has been reported that the president consulted with Attorney General Jeff Sessions on the possibility of dismissing the case. Sessions argued against that, and the prosecution was permitted to go forward. I’ll have more to say in the later column about the propriety vel non of Trump’s raising the matter with Sessions. For now, the more obvious point will suffice: The rationale that favored allowing the trial to go forward would equally have called for allowing the appellate process to go forward. The point was to allow the system to work, and Arpaio to be vindicated (if there were grounds for vindication) without extraordinary presidential interference.
Arpaio’s sentencing was still weeks away. Even if Judge Bolton had imposed the maximum six-month sentence — unlikely, I believe — the former sheriff would have remained free on bail pending appeal. The appeal would have taken close to a year to complete, and there is an outside chance that Arpaio would have prevailed, in which case there’d have been no occasion for a pardon. In the more likely event that Arpaio lost, he could then have appealed to the Supreme Court. While it is highly unlikely that the justices would have taken the case for review, there is always a chance — and, in any event, another several months would have elapsed.
There was no sensible reason to pardon Arpaio at this time. By waiting, Trump might have avoided doing it at all.
There was no sensible reason to pardon Arpaio at this time. By waiting, Trump might have avoided doing it at all. At a minimum, he might have held off until some more opportune time when his administration would — he’d hope — have some legislative wins under its belt and some distance from debacles such as Charlottesville. By issuing the pardon now, the president further isolates the base that must become larger and more inclusive if he is to succeed. He further alienates the growing number of Americans who disapprove of his performance. In fact, before it was official, the prospect of an Arpaio pardon was unpopular even in Arizona.
In other words, every sign said that pardoning Sheriff Arpaio would be a bad thing to do, and that last week would be a gratuitously bad time to do it. Because he either is too impetuous to stop himself or cares only about retaining the shrinking core of his most rabid supporters, Trump did it anyway. That does not augur good times ahead.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.