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Tuesday, September 19, 2017

Talking in Public: A Cautionary Tale for Lawyers

Kenneth Vogel of The New York Times has this remarkable story that should serve as a cautionary tale for all attorneys who may feel tempted to speak about their cases and clients outside of the office. Vogel reports that he was getting lunch with a source in a Washington DC restaurant, when he noticed Ty Cobb, the attorney retained by the White House to assist in responding to various Russia investigations, having a conversation with John Dowd, Trump's "lead outside counsel in the Russia investigations."

Mr. Cobb was not difficult to notice, on account of his incredible moustache:



Mr. Cobb chose to discuss his work in representing the White House in the Russia investigations, and apparently talked loudly and extensively enough about his work to give rise to this story detailing the conflict among Trump's attorneys over the proper level of cooperation in the Russia investigations.

From Vogel's article describing how he got the scoop:
I ordered yet another iced tea, and continued typing away, as Mr. Cobb and Mr. Dowd delved deeper, not paying me any mind.
They discussed presidential privilege and its effect on document production, tensions on the legal team and their colleagues. Mr. Cobb suggested one colleague was not on the president’s good side, but added, “I’m trying to get the president not to pick a fight with her.”
Finally, after more than 45 minutes of my assiduously listening to their conversation by myself, Mr. Cobb picked up the check and announced to Mr. Dowd, “All right, boss, I got to roll back to my little hole. I’ve got like a seven and a half foot ceiling ... Wilt Chamberlain couldn’t stand up in it.”
Attorneys are often warned during training or in law firm policies to avoid discussing matters related to their work in public settings. Whether it is in a restaurant, on the sidewalk, or in the elevator, attorneys should avoid discussing clients and cases, as any information communicated to lawyers is privileged, and attorneys' strategies and theories are protected by the work product doctrine. Speaking up about privileged information in a public setting is a very easy way for an attorney to run into serious problems.

Warnings against public discussion of work are often confined to the hypothetical elevator or restaurant. But Vogel's article gives a spectacular real-world example of what attorneys everywhere should avoid doing.

Wednesday, September 13, 2017

Boating Under the Influence and Probable Cause

Here's some good news out of Iowa: it appears that incidents involving people boating under the influence of alcohol are on the decline. From this KCRG report:

A total of 78 full time Iowa Department of Natural Resources conservation officers cover Iowa's 99 counties. This summer those officers did get the help from 29 seasonal water patrol officers but that still means full timers have multiple counties under their care. And when you consider around 500 boats may be out on a typical holiday weekend just at Coralville Reservoir alone, catching someone boating under the influence can be a challenge.
. . .
"If a state trooper or deputy officer in the cities, they know 'okay they're going across the lines.' There's no lines on the water. There's no evidence left other than the wake," said [Iowa Department of Natural Resources conservation officer, Eric] Wright.
By late July at Coralville Reservoir only three people had been arrested this summer for the crime. If you think that number is low, you're not alone.
"There's been fairly heavy enforcement on Coralville itself and we're starting to see the effects of it."
Data obtained by I9 through an Iowa open records request shows BWI arrests at Coralville have been on the decline since at least 2014 when 33 people were charged. The numbers statewide show a similar story, arrests did spike however in 2015 when 47 people were arrested. Fast forward to July of this present year and that number drops to 29.
The consequences for boating under the influence are similar if you are caught driving a car drunk in Iowa but if you get a BWI there is nothing stopping you from losing your driving privileges out on the road. In fact, when I9 searched the names of people charged over the years with BWI we found several who also had OWIs on their record as well.
The report is a bit confusing -- particularly the second-to-last paragraph. It is unclear whether the 47 people were arrested statewide or in the Coralville reservoir alone (the context suggests that it is in Coralville alone). With that number in the mix, the claim that arrests have been on the decline since 2014 isn't accurate - rather the arrests seem to have been on the decline since 2015 (assuming 2016 had fewer than 47 arrests, but more than 29).

But I did not highlight this story or spend untold numbers of what could have been billable hours writing this post to slog through numbers. Instead, I was intrigued by Officer Wright's discussion of deciding whether to pull over a boat -- noting that unlike officers who decide to pull over a car, there may not be clear cut instances where the car crosses a lane line. While the Fourth Amendment restricts officers from the unreasonable seizure of vehicles, officers are permitted to stop a vehicle if they have reasonable, articulable suspicion that a crime has occurred -- or "probable cause." Most typically, officers can establish probable cause by observing a traffic violation, like failing to signal, crossing a lane line, or speeding. But what about boats?

A potential basis for stopping a boat is analyzed in depth in the Iowa Supreme Court case of State v. Pettijohn. There, the Court held that an officer's stop of a boat was constitutional because the officer reasonably believed that the operator of the boat was violating Iowa Code 462A.12, which prohibits the reckless, negligent, or careless operation of a vessel, water skis, surfboard, or similar device. The basis for the violation? The defendant was driving a boat while a passenger was dangling her feet in the water near the motor, which the officer knew used an unguarded propeller based on his knowledge of the type of boat that he observed. Section 462A.12 likely operates as a catch all, as officers can likely articulate reasons for stopping boats based on numerous circumstances, including boating in darkness without lights (assuming there aren't laws that already specifically address that), or unsafe speed (particularly with other boats present), or both!  See, e.g., Iowa Supreme Court Attorney Disciplinary Board v. Cannon (attorney suspended from practice of law for various prior alcohol/drug related offenses, including a boating while intoxicated offense in which he was stopped for accelerating "rather quickly" in a five mile per hour speed-limit zone at 10:30 p.m.).

Another potential basis for stopping a boat is mentioned, but not analyzed, in State v. Slade, where officers believed that a boat was over capacity, and stopped the boat for that reason. As it turns out, the boat contained 16 people, but only was designed to hold 14 people. Slade is notable because it involves "Party Cove" at the Coralville reservoir. Having grown up close to that location, were I to testify as an expert on the Fourth Amendment as applied to Iowa waters, I would likely conclude that the mere presence of a boat in that section of the reservoir constitutes probable cause to stop a boat on suspicion of boating under the influence. I doubt that the courts would agree with me, but that's just because the judges that make these important decisions haven't spent enough time out on the reservoir on the weekends.

But perhaps things have changed since I left Iowa.  KCRG notes that only three people had been arrested on the reservoir for boating under the influence by late July this year. This does not sound like the booze-soaked body of water of my childhood memories, and if the arrest numbers reflect a general trend towards less drinking and boating, then it's a trend that I welcome.

Friday, September 8, 2017

Recent Equifax Breach Prompts Criticism of Arbitration Provisions (Updated)

The credit monitoring firm, Equifax, recently suffered a massive data breach, resulting in the exposure of the personal information of approximately 143 million Americans. This personal information includes names, Social Security numbers, birth dates, and addresses.

Equifax, realizing how terrible this is, has tried to respond by offering free credit report monitoring services to its customers for a year. But this isn't going over very well, as it appears that Equifax may be attempting to get people to waive their class-action rights and agree to binding arbitration provisions by signing up for the credit-monitoring service. From the Wall Street Journal:
The fine print in the Equifax agreement concerning the monitoring services said that consumers who take part waive the ability to bring or participate in a class-action suit, a class arbitration or other similar legal actions. That seemed to suggest that consumers would be bound to an individual arbitration process with the company, which some argue is a more difficult place for consumer to get larger rewards for their problems.
The Washington Post has similar reporting here, and a report from MarketWatch is here.

The Terms of Service that contain the "fine print" can be found here. Here is the relevant provision:
Binding Arbitration. Any Claim (as defined below) raised by either You or Equifax against the other shall be subject to mandatory, binding arbitration. As used in this arbitration provision, the term "Claim" or "Claims" means any claim, dispute, or controversy between You and Us relating in any way to Your relationship with Equifax, including but not limited to any Claim arising from or relating to this Agreement, the Products or this Site, or any information You receive from Us, whether based on contract, statute, common law, regulation, ordinance, tort, or any other legal or equitable theory, regardless of what remedy is sought. This arbitration obligation extends to claims You may assert against Equifax’s parents, subsidiaries, affiliates, successors, assigns, employees, and agents. The term "Claim" shall have the broadest possible construction, except that it does not include any claim, dispute or controversy in which You contend that EIS violated the FCRA. Any claim, dispute, or controversy in which You contend that EIS violated the FCRA is not subject to this provision and shall not be resolved by arbitration.
The key in this paragraph is the definition of "Claim," which is sufficiently broad to cover damages arising from the data breach (as these damages presumably arise from one's relationship with Equifax).

Equifax may claim that the Terms of Service linked to above do not apply to customers who enroll in the "TrustedID Premier" program that Equifax is offering after the breach. That program is linked to from this page (with a URL of www.equifaxsecurity2017.com). The Terms of Service associated with the TrustedID program are here, and while they also contain a pretty stringent-sounding arbitration provision, it does not contain the same, extremely broad "Claim" definition. [NOTE: See update below].

But the Terms of Service that I initially quoted should still apply to those who enroll in the TrustedID service because those Terms are extremely broad in their potential application:
THIS PRODUCT AGREEMENT AND TERMS OF USE ("AGREEMENT") CONTAINS THE TERMS AND CONDITIONS UPON WHICH YOU MAY PURCHASE AND USE OUR PRODUCTS THROUGH THE WWW.EQUIFAX.COM, WWW.IDENTITYPROTECTION.COM AND WWW.IDPROTECTION.COM WEBSITES AND ALL OTHER WEBSITES OWNED AND OPERATED BY EQUIFAX AND ITS AFFILIATES ("SITE"). YOU MUST ACCEPT THE TERMS OF THIS AGREEMENT, INCLUDING THE ARBITRATION AGREEMENT CONTAINED IN SECTION 4 BELOW, BEFORE YOU WILL BE PERMITTED TO REGISTER FOR AND PURCHASE ANY PRODUCT FROM THIS SITE. BY REGISTERING ON THIS SITE AND SUBMITTING YOUR ORDER, YOU ARE ACKNOWLEDGING ELECTRONIC RECEIPT OF, AND YOUR AGREEMENT TO BE BOUND BY, THIS AGREEMENT. YOU ALSO AGREE TO BE BOUND BY THIS AGREEMENT BY USING OR PAYING FOR OUR PRODUCTS OR TAKING OTHER ACTIONS THAT INDICATE ACCEPTANCE OF THIS AGREEMENT.
Sorry for all the capital letters. I strongly suspect that attorneys who draft terms of service agreements are secretly angry people, and sometimes the rage manifests itself in the work product.

In case you cannot read the paragraph above, it applies the terms in the Agreement to all websites owned and operated by Equifax and its Affiliates.

In response to critics pointing out how Equifax appears to be systematically herding potential Plaintiffs' into agreeing to binding arbitration, Equifax has set up this "Progress Update" page where it tries to put out the new fire that it has caused:
2). NO WAIVER OF RIGHTS FOR THIS CYBER SECURITY INCIDENT
In response to consumer inquiries, we have made it clear that the arbitration clause and class action waiver included in the Equifax and TrustedID Premier terms of use does not apply to this cybersecurity incident.
Have they though?

Let's go back to the Terms of Service -- specifically, to the relevant portion of the integration clause near the end:
ENTIRE AGREEMENT BETWEEN US. This Agreement constitutes the entire agreement between You and Us regarding the Products and information contained on or acquired through this Site or provided by Us, including through other linked third party Internet sites.
This appears to exclude Equifax's damage control statements, which appear on a separate page and are not included in the terms of the Agreement. All Equifax would need to do would be to point to this clause and argue that its statements elsewhere about the arbitration agreement not applying are of no legal relevance.

In short, commentators who are criticizing Equifax's response seem to have a pretty good point. Signing up for Equifax's free (for a year) credit report monitoring service may result in a waiver of rights that the average consumer would not expect, and likely would not agree to if it were put into plain English.

All of this may end up being moot, however, as signing up for the credit monitoring service requires customers to give Equifax the last six digits of their Social Security numbers. Perhaps those willing to entrust Equifax with this information following a breach of this magnitude are willing to agree to just about anything, including a waiver of the right to trial and right to join in a class action.

[UPDATE: 9/11/2017]

I have revised the post above to add the link to the TrustedID Program Terms of Use, which I had not linked to in the original post. Additionally, at the time I wrote the initial post, the TrustedID Program's Terms of Use included an arbitration provision, albeit one that was less all-encompassing than the provision in Equifax's general Terms of Service Agreement. The TrustedID Program's Terms of Use have now been updated and no arbitration provision appears in these terms at all. The TrustedID Agreement contains integration clause near the end of the Agreement, which states, in pertinent part:
ENTIRE AGREEMENT BETWEEN US. This Agreement constitutes the entire agreement between You and Us regarding the Products and information contained on or acquired through this website or provided by Us, including through other linked third party Internet sites.
This may have the effect of fulfilling Equifax's promise that their arbitration provisions do not apply to the recent breach. Users affected by the breach could visit the webpage for the TrustedID Program without ever accessing Equifax's general website (say, by linking to the TrustedID page from the link in the post above). And while the broad terms of Equifax's general Terms of Use still apply, Equifax would probably have a harder time arguing in court that customers are bound to the general Terms of Use if those customers could have enrolled in the TrustedID Program without ever visiting (or being prompted to visit) a page containing or linking to Equifax's general Terms of Use.

In short, users looking to enroll in the TrustedID Program now have a much stronger argument that they have not agreed to arbitration and may still pursue claims in court, either as individuals or through a class action. Of course, I just checked the TrustedID page and it is still seeking the last six digits of my Social Security Number ... so users still must decide whether entrusting Equifax with this information following the breach is a prudent action to take.

Tuesday, September 5, 2017

North Carolina Court of Appeals Rejects Constitutional Challenge to Alienation of Affections and Criminal Conversation Causes of Action

From the Washington Post:
A jilted husband’s lawsuit against a doctor accused of stealing his wife’s love can proceed after a North Carolina appeals court ruled Tuesday that the husband can continue suing the spouse’s lover, seeking damages.
The state Court of Appeals decision resurrects a lawsuit that a trial judge had thrown out in Forsyth County, whose seat is Winston-Salem. The judge ruled that state law violates a person’s constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults.
North Carolina is one of only about a half-dozen states that still allow lawsuits accusing a cheating spouse’s lover of alienation of affection and criminal conversation.
The Court of Appeals' opinion is here. From the introduction to the opinion:
This case concerns two common law causes of action—alienation of affection and criminal conversation—that permit litigants to sue the lovers of their unfaithful spouses. These laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.

Defendant Derek Williams contends that these aging common law torts are facially unconstitutional because they violate individuals’ First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.
As explained below, we reject this facial constitutional challenge. Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments. This sets these common law claims apart from the discriminatory sodomy law at issue in Lawrence v. Texas, 539 U.S. 558 (2003), which was not supported by any legitimate state interest and instead stemmed from moral disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent personal and societal harms without regard to the content of the intimate expression that occurs in the extra-marital relationship. Thus, under United States v. O’Brien, 391 U.S. 367 (1968), these torts are constitutional despite the possibility that their use burdens forms of protected speech and expression.

I have not had a chance to look through the opinion, but will do so in a later post. For now, the media outlets covering the case have failed to link to the full opinion, so hopefully anyone else who wants to write about it will see this post and link to the opinion like I did.

This case is particularly notable because a North Carolina Superior Court judge struck down an alienation of affection lawsuit in 2014 arguing that there was no rational basis for the law and noting that the law chilled protected speech. My post breaking down that decision and examining North Carolina's law is here.

From a quick glance at the Court of Appeals opinion, it looks like there is some fairly in-depth discussion of the law's First Amendment implications, which I will be interested in reading in light of my prior criticism of the law. Additionally, the fact that this is a facial challenge to the law may not foreclose future challenges -- although having an appellate decision on record upholding the law may deter lower courts from upholding such challenges. I will discuss this in more depth in a future post.

Thursday, August 31, 2017

A Survey of State Laws Against Glue Sniffing and Driving Under the Influence of Glue

After writing yesterday's post on this story about a man arrested in Cedar Rapids, Iowa for allegedly driving while sniffing fumes from an aerosol can, I decided to do a little more research into glue sniffing laws in other states. As I noted in yesterday's post, Cedar Rapids' ordinance does not apply to any substances other than glue or cement, so any non-adhesive, aerosolized substances that people may inhale to get high are not covered by the ordinance. Additionally, I was unable to find any provisions in Iowa law regarding driving under the influence (operating while intoxicated) that clearly applied to driving while under the influence of inhaled glue or other aerosolized substances.

Cedar Rapids' ordinance banning glue sniffing states:
62.29 - GLUE SNIFFING.
(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.   
(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.                           
(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

While I concluded that Cedar Rapids' ordinance did not apply to the conduct described in the article, there are other, more expansive, state laws on glue sniffing that Cedar Rapids may want to imitate if it wants to broadly ban the huffing of fumes from glues and aerosols.

Wednesday, August 30, 2017

Driving Under the Influence of Glue?

I like to check in on what's happening in my old home state of Iowa, and in doing so today I was drawn to this KCRG story on an (allegedly) very stupid and irresponsible driver:
A Cedar Rapids man was charged with Driving Left of Center and Glue Sniffing.
An officer was traveling westbound in the 4500 block of 1st Avenue East around 5 p.m. on August 29 when they saw a car driven by James Knight, 58, traveling in the left lane veer into the right lane.
The car crossed the dotted line and the driver corrected it, but then crossed the solid yellow line dividing the westbound lanes with the center turn lane.
The officer saw the driver holding a canister and suspected Knight may be huffing. He followed the car and when it stopped, the officer got out of his squad car and approached Knight's car.
The driver appeared to be passed out or had blacked out. When the officer knocked on the window, the driver appeared startled and the car began to roll forward.
The officer told the driver to put the car in park but the driver didn’t seem to understand and appeared to be in some intoxicated state.
The vehicle rolled forward and hit another parked car.
The officer was able to put the car in park. Knight was holding an aerosol can and denied huffing the gases out of the can.

When the story's headline contains "glue sniffing," it's difficult not to click.

Knight's reported behavior is more dangerous than driving over the center line, so it is understandable that the authorities wanted to charge him with something more than simply driving over the center line. Knight probably cannot be charged with driving under the influence (or operating while under the influence, to use Iowa's language) as this statute (Iowa Code 321J.2) is limited to those under the influence of alcohol or drugs. "Drug," is conveniently undefined under Iowa's OWI laws. Unless there is an extremely expansive definition of "drug" elsewhere in the Iowa Code that applies, the language of the OWI statute appears to foreclose charging Knight with this offense, which is most likely why Knight was not charged with OWI.

But does Knight's conduct constitute "glue sniffing?"

To answer this, we need the text of the Cedar Rapids City Ordinance that bans glue sniffing. You can find it here, and the complete text of the ordinance is as follows:
62.29 - GLUE SNIFFING.
(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.   
(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.                           
(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.
Knight was reportedly in possession of an "aerosol can," and was presumably suspected of huffing gasses out of the can. People can get high from huffing or sniffing fumes from aerosol cans, as noted by the National Institute on Drug Abuse. But while the end result of sniffing these fumes may be similar to the result of sniffing glue, King's alleged conduct does not appear to fall under the scope of the glue sniffing ordinance.
Based on the language of the ordinance, it does not seem to apply to instances where a person sniffs fumes from an aerosol can to get high. The ordinance defines "model glue" as "any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors." This definition is irritating, since it essentially uses the word "glue" to define "glue." While a number of chemicals are named, and while the catch-all at the end of the definition includes other toxic vapors, these chemicals are restricted to chemicals contained in "glue or cement." While I am not an expert on what is going on inside of an aerosol can, Wikipedia informs me that the cans contain small particles or liquids that are dispersed with a propellant, which creates the pressure that forces the particles/liquid out of the can as a spray. This sounds like quite the opposite of glue or cement, which have high viscosity.
It's possible one might attempt to apply the "or other solvent or chemical having the property of releasing toxic vapors" portion of the model glue definition to an aerosol can. But this reading is not correct, since this catch-all provision is part of a list that modifies the terms "glue" or "cement." The most subtle revision to the statute that could support such an interpretation would be to separate the named chemicals from the catch-all -- for example: "the term model glue shall mean any glue or cement containing toluene or acetone, or other solvent or chemical having the property of releasing toxic vapors." If this is what the ordinance said, Knight's conduct could potentially fall under it. As written, however, sniffing or huffing from an aerosol can does not fall under the language of Cedar Rapids' glue-sniffing ordinance.

[UPDATE - 8/30/2017]

A friend surprised me with a sudden outpouring of his proclaimed knowledge and enthusiasm for glue and its diverse potential forms. He informed me that glue does not necessarily have high viscosity, and that rubber cement, for example, could become fluid enough to be aerosolized if enough of a solvent were added to it. Indeed, here is a "Multipurpose Adhesive Aerosol" that I found with some quick Googling! I suppose that the law could be interpreted to apply to aerosolized adhesives, as glue can be defined by its function of binding objects together, although it most commonly refers to a substance that absorbs water and becomes a viscous solution with strong adhesive properties. Perhaps the courts will one day address these pressing questions regarding the true definition of glue.

Of course, it is doubtful that Knight was sniffing aeresolized glue, unless he somehow even less intelligent than initially thought. Such a practice would carry the risk of gluing his nose shut while attempting to get high, an outcome that would not only be inconvenient and painful, but that would also prevent Knight from continuing to sniff the aerosol. I suspect that if Knight indeed was using an aeresolized substance to get high, it was likely a substance other than the aeresolized adhesive that I linked to above.

Tuesday, August 29, 2017

The Arpaio Pardon: Awful, But Not Unconstitutional

"Pardoning Joe Arpaio Would Be a Constitutional Crisis" proclaims the headline of this article by Bob Bauer in Foreign Policy. The text of the article is less extreme, with no mention or definition of a constitutional "crisis." Yet Bauer's argument is in line with most of the criticism published in the last week arguing that President Trump's recent pardon of Sheriff Joe Arpaio would likely support a case for impeachment against Trump. Bauer writes:
[W]hile the president may well get away with the specific act of pardoning Arpaio, this action will not be without effect on future calls for impeachment. Unlike a pardon of himself, family members, or aides in the Russia matter, pardoning Arpaio would probably not result in the immediate demand for an impeachment inquiry. If, however, impeachment pressure increases, or a formal impeachment inquiry is launched on the basis of Russian “collusion,” obstruction, or on other grounds, an Arpaio pardon in the background will be highly damaging to the President’s position. It will immeasurably strengthen the hand of those arguing that Donald Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to be entrusted with the presidency.
(Bauer's article was published on August 25, 2017, prior to Trump's pardon of Arpaio). In the August 24, 2017 edition of the New York Times, Martin Redish argues that Trump's pardon of Arpaio would be unconstitutional because it violates the due process clause of the Fifth Amendment -- a theory that Redish admits is "novel" and unsupported by any Supreme Court opinions.

Other commentators call for Trump's impeachment as a result of the pardon. Noah Feldman claims that Trump's pardon of Arpaio is "so exceptional -- and so bad" because it involves the charge of criminal contempt of court. Explaining the background for Arpaio's conviction, Feldman writes:

Specifically, Arpaio was convicted this July by Judge Susan Bolton of willfully and intentionally violating an order issued to him in 2011 by a different federal judge, G. Murray Snow.
The order arose out of a civil suit against Arpaio brought by the American Civil Liberties Union, accusing him of violating the law by detaining undocumented immigrants simply for lacking legal status.
Snow issued a preliminary injunction that ordered Arpaio to stop running so-called saturation patrols -- police sweeps that essentially stopped people who looked Latino and detained those who were deemed undocumented. The basic idea was that the profiling, warrantless stops and detention were unconstitutional.
Yet despite the federal court’s order, Arpaio kept running the unlawful patrols for at least 18 months, and publicly acknowledged as much.
Arpaio was subsequently convicted of criminal contempt of court as a result. Feldman argues that Trump's pardon of Arpaio reflects "express presidential contempt for the Constitution," and "undermine[s] the rule of law itself" because it effectively pardons the willing violation of constitutional rights. Feldman's critique grows more abstract, as he argues that a pardon would "threaten the very structure on which [Trump's] right to pardon is based," and that "the president is breaking the basic structure of the legal order" by blocking the authority of the courts to tell law enforcement what the law is. Frank Bowman advances a similarly-toned argument, lamenting that the pardon is an impeachable offense because it is "a direct attack on the constitutional powers of the judiciary as a coordinate branch of government."

While I agree with these commentators that Trump's pardon of Arpaio is a bad thing, I am less inclined to argue that it undermines the "rule of law" or that it creates any constitutional crisis. I certainly do not think that it violates the Constitution.

On the constitutionality front, Ex Parte Grossman is a difficult obstacle for any would-be claim of unconstitutionality. There, the Supreme Court upheld a pardon of a conviction for criminal contempt of court, noting that the hypothetical impact of abusive pardoning of criminal contempt does not warrant "reading criminal contempts out of the pardon clause." Considering the hypothetical of even broader abuse, the Court noted:
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.
It is important to consider Grossman's broader lesson, particularly for critics like Bowman who argue that Trump's pardon is an attack on the constitutional powers of the judiciary. Any pardon undoes a judicial ruling -- it is a direct check that the executive branch of government has on the judiciary. Trump, in pardoning a conviction of criminal contempt stemming from constitutional rights violations, has simply laid out this conflict in what may be its rawest possible form. While it is "emphatically the province and duty of the judicial department to say what the law is," the Constitution explicitly grants the President the ability to override whatever the courts might say, and does not place any procedural constraints on the pardon power (such as a requirement that the Department of Justice review a petition for a pardon) or restrict the power to instances that are apolitical. Accordingly, Trump's pardon is an instance where the executive's check on the judiciary is extremely apparent, but this does not warrant cries of a "constitutional crisis" or a threat to "the very structure on which the right to pardon is based."

That being said, I believe that Trump's pardon of Arpaio is a disturbing endorsement of race-based enforcement of laws, and helps out a former Sheriff who has done many, many terrible things. And critics should still point out all of the problems with Trump's pardon, and should emphasize that Trump has just endorsed a brutal and senseless approach to law enforcement.

And you may notice that my argument above does not dismiss the possibility of impeachment. I don't. And I won't. Because as the too-often ignored case of Nixon v. United States tells us, the basis for impeachment is a political question, meaning that impeachment effectively means whatever Congress decides, and the courts will not review or challenge the determination. Interestingly, the Court would likely say the same of any challenge to Trump's use of the pardon power. Trump can pardon whatever the heck he wants, but on the flip side, he can be impeached for whatever the heck Congress wants.

At base, this system may seem imprecise and the implications of pardons and impeachments may be profound. But it is ultimately how the system was designed. Trump's recent pardon is not a crisis, but is instead an example of the system in operation, albeit an operation performed for an awful reason. It is not a system that is in crisis.