When the framers of the US Constitution arrived in Philadelphia in 1787 to consider a new form of government for the United States, it was a foregone conclusion that it would have three branches. Well-educated students of history, the framers had been influenced by great political thinkers of the past, including the Frenchman Montesquieu. Central to his ideas about government was the concept of separation of powers. He believed that the best way to preserve individual liberty and avoid tyranny was to divide the powers of government into the legislative, executive, and judicial function. In this way, none of the branches would possess all of the power and each would balance one another off.
Those at the Constitutional Convention worried about power too. Fresh from the revolutionary experience, they wanted to make sure that the government had enough power to solve the country’s problems, but not too much power to ride roughshod over the states or individual citizens. Many viewed the judicial branch as, in the words of Alexander Hamilton, “the least dangerous to the political rights of the Constitution” and as a necessary buffer between the powerful presidency and Congress.
As a result a judiciary was created that, save for the right of the executive to appoint judges with the advice and consent of the legislative branch (i.e. the Senate), would be totally politically independent and its decisions were to be accepted and carried out as directed. Yet, there was a provision that gave the executive branch the right to pardon when circumstances warranted such action.
Since that time democratic leaders have often felt that the judiciary put too many restraints on their actions and, from time to time, efforts have been made in most countries to weaken the judiciary.
In Israel we regularly hear complaints from the Prime Minister’s office that the judiciary has overstepped their bounds or has acted in some way that the executive perceives as detrimental to his or her objectives. Fortunately, at least for the moment, the independence of the judiciary in Israel remains secure but, as always, under threat.
In the United States, as well, the legislature has refrained from trying to shackle the independence of the courts and presidents have been judicious themselves in using their pardoning power only in those cases where the normal tests associated with a pardon have been passed successfully. Generally, the high profile pardons, such as the 1974 pardon of former President Richard Nixon by the newly inaugurated President Ford are carried out for reasons of national interest. So, in that case, as an example, the nation needed to heal after the Watergate scandal and its aftermath and the president decided to use the pardon as a healing mechanism.
President Trump’s pardon two weeks ago of Joe Arpaio, former sheriff of Maricopa Country, Arizona does not seem to fit any of the standard tests for a pardon. The sheriff was found guilty in July of criminal contempt for defying a judge’s order against prolonging traffic patrols targeting immigrants. In short, the sheriff was convicted of violating the constitutional rights of the citizenry, in defiance of a court order involving racial profiling.
By pardoning the sheriff, the president has signaled that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, as long as their actions are consistent with presidential policies.
The framers of the constitution, who declared the establishment of the United States so that tyrannical leadership would no longer be tolerated, created an independent judiciary specifically to avoid this type of interference by either of the other two branches of government.
It has long been recognized that the greatest threat of tyranny in any country derives from the executive branch where the commander in chief sits, overseeing not just the military but a vast network of law enforcement and regulatory agencies. The guarantee of a neutral judicial process before deprivation of liberty cannot function with a pardon power that enables the executive in charge to circumvent judicial protections of constitutional rights.
Time will tell whether the pardon itself will be challenged in the courts of even if it can be challenged. To quote Charles de Montesquieu once again, “The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy.” Surely circumventing the judicial process puts any country on the slippery slope towards tyranny which the dictionary defines as cruel, unreasonable or arbitrary use of power or control.