A Pardon for Arpaio Would Put Trump in Uncharted Territory
But if 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.
Should the president indicate that he does not think Mr. Arpaio should be punished for that, he would signal
that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies.
The power of courts to restrain government officers from depriving citizens of liberty absent judicial
process is the only meaningful way courts have to enforce important constitutional protections.
The due process clause of the Fifth Amendment dictates
that neither life nor liberty nor property may be deprived absent “due process,” which the Supreme Court construes to require adjudication by a neutral judge.
But if the president signals to government agents that there exists the likelihood of a pardon when they violate a judicial injunction
that blocks his policies, he can all too easily circumvent the only effective means of enforcing constitutional restrictions on his behavior.
