Abuse of Pardons? A Prohibition-Era Precedent

The president’s pardon of Joe Arpaio has a precedent—sort of. 

Phillip Grossman sold liquor in 1920, in violation of the National Prohibition Act. Like Arpaio, he was enjoined by a court to stop breaking the law. He continued. The court, then, fined and imprisoned him for criminal contempt—i.e., violating the court’s order. President Calvin Coolidge pardoned Grossman.

Sounds like Arpaio’s case—but there are differences. Grossman had to admit guilt. Arpaio does not. Grossman paid a $1,000 fine. Arpaio has been fundraising for his book and next political campaign.

The feds re-arrested Grossman to finish serving his prison sentence. The Supreme Court ruled that Grossman’s pardon did not violate the Constitution, and therefore, he could not serve more time.

Here is the interesting part that relates to the possibility that President Trump might pardon everyone connected to the Mueller investigation—Flynn, Manafort, Donald Jr. and others. The Supreme Court said in its 1925 decision:

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President.

This has two clear meaning. 

First, the Supreme Court in 1925 could not imagine a president with the constitutional audacity of Donald Trump (“it is enough to observe that such a course is so improbable as to furnish but little basis for argument”). 

Second, as if anticipating Donald Trump, the Court said, nonetheless, that courts cannot stop this behavior. Only Congress can, via impeachment.