//  10/4/17  //  Commentary

We often tell ourselves “forgive and forget,” but when a president pardons a crime does that mean we forget it? It doesn’t and shouldn’t. Those who claim otherwise don’t understand the meaning of the pardoning powers under the Constitution.

A pardon is an act of mercy remitting punishment or barring further prosecution; it is not an amnesia pill. Executive pardons are powerful enough to grant freedom to prisoners on death row, but they cannot rewrite the history books or create the fiction that the pardoned conduct never occurred. 

This is no merely theoretical distinction. It bears on the legal consequences of President Trump’s pardon of Joe Arpaio, the former Arizona sheriff. Oral argument about the pardon is set for today, October 4, and the Department of Justice has supported Arpaio’s request that Judge Susan Bolton vacate his criminal contempt conviction. But she could instead simply dismiss the case and let the contempt ruling linger. 

A conviction for criminal contempt differs from a final conviction in a criminal case. It arises out of a court’s decision that a party willfully disregarded a court order rather than a jury verdict on the defendant’s guilt or innocence. In Arpaio’s case, a judge had ordered him to stop detaining people based only on his belief they were illegal immigrants. Evidence showed he flagrantly disobeyed that order. That led to his criminal contempt conviction in July.

There’s a first question we should ask: Is Trump’s pardoning of Arpaio constitutional at all? Here the answer is yes. In the 1925 case Ex parte Grossman, the Supreme Court held that the president can constitutionally pardon convictions for criminal contempt. Some lawyers and scholars have argued either that Grossman doesn’t apply to the Arpaio case, or that it should be overturned, and that the Arpaio pardon is constitutionally invalid. But given the broad scope of the president’s pardon power, these arguments don’t seem particularly convincing. For better or worse, Grossman sets a clear precedent and needs be followed.

But here’s the catch: if we follow the precedent of Grossman, then that also means Arpaio’s contempt conviction should not be vacated. Why? Because, according to my review of the historical record, Grossman’s conviction was never vacated after President Coolidge’s pardon. This means that there is no precedent for forgiveness entailing forgetting, at least when it comes to executive pardons. 

Current Justice Department guidance confirms the distinction between pardoning and erasing. A presidential pardon does not expunge the fact of a prior conviction; instead, federal judges can order expungement under limited circumstances. Following a pardon, the record of an individual’s conviction stands side by side with his or her pardon. There is an additional complexity in the Arpaio case because final judgment was never entered against the sheriff; the plaintiffs in the original class action against Arpaio have, however, submitted an amicus brief that effectively responds to the government’s argument that this distinction should make a difference.

Looking at the longer historical record, there is a long tradition of differentiating between erasing crimes and pardoning them. In seventeenth- and eighteenth-century England and America, for example, there were many Acts of Oblivion. As the name suggests, these statutes forcefully prescribed forgetting. Coming in the aftermath of events like the English Civil War or mass uprisings, they were designed to halt civil conflict and put to rest the memory of prior turbulence. They covered large swaths of people, mandated forgetting, and carried stiff penalties against those who insisted on bringing sore subjects to the fore.

Even in England, however, the King did not issue these Acts of Oblivion through his prerogative powers. Instead, they were passed by the King in Parliament. In America, colonial legislatures, not governors, issued them. Why? Because the decision to forget is of great consequence. It should be made by the whole community through its representatives, not by one person.

Memory in these contexts is important. To take but one example: even though President Obama commuted Chelsea Manning’s sentence last year, uproar over the activities leading to her conviction by court martial recently led Harvard University to withdraw its fellowship offer to her. Should we let Arpaio get off more lightly and allow his violations of many people’s constitutional rights to be removed from the historical record?

Judge Bolton would be making a serious error if she were to vacate Arpaio’s criminal contempt conviction. But even if she does, let’s not let President Trump make us forget what Arpaio did.

 


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