Erwin Chemerinsky is the new dean of the law school at Berkeley. He’s the author of 10 books, most recently, Closing the Courthouse Doors: How Your Constitutional Rights Became Unenforceable and Free Speech on Campus. He frequently argues appellate cases, including in the Supreme Court. This interview has been edited and condensed.
Jon Wiener: We’ve been worrying ever since Trump took office about how he would use the pardon power the Constitution gives the president. Last Friday night, Trump issued his first pardon: It was for Arizona Sheriff Joe Arpaio. For more than 20 years, Arpaio and his officers had terrorized Latinos in Southern Arizona. They ran sweeps of Latino neighborhoods, arresting people on various charges, abusing and humiliating others. Many of those who were arrested were sent to his tent city, which Arpaio himself proudly called “a concentration camp,” where they lived under brutal conditions. Finally, the Department of Justice charged him with racial profiling. What happened then?
Erwin Chemerinsky: In 2011, the Justice Department issued a report saying that Arpaio was engaged in a pattern and practice of unconstitutional policing. For example, it found that one-fifth of the stops of Latino drivers were done without probable cause or reasonable suspicion. The report said that Arpaio’s office treated every Latino as if he or she was in the United States illegally. A civil suit against the sheriff—not an action by the Justice Department—came before a federal judge, a Republican appointee: Judge G. Murray Snow. He issued an order prohibiting Arpaio and his Sheriff’s Department from continuing to engage in racial profiling.
Arpaio was openly defiant. Snow held a hearing and found that Arpaio willfully violated the court’s orders. He found cause to hold a new hearing, as to whether or not Arpaio should be tried for criminal contempt of court. That case was assigned to another federal-court judge, Susan Bolton, and she convicted Arpaio of criminal contempt, of flagrant disregard of Judge Snow’s 2011 court order that Arpaio cease racial profiling. Sentencing was scheduled for this October.
JW: Trump replied to critics of his pardon of Sheriff Joe by noting that Bill Clinton had pardoned Marc Rich, who had been convicted on 65 counts of tax evasion, but whose wife had given hundreds of thousands of dollars to the Clintons. Trump also pointed out that Obama pardoned Chelsea Manning, who was convicted of violating the Espionage Act after releasing hundreds of thousands of documents through WikiLeaks. Is Trump right that these pardons by Clinton and Obama are no different from his own pardon of Sheriff Joe?