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An Unpardonable Pardon

Joe Arpaio
Joe Arpaio, June 2016. Photo by Gage Skidmore.

President Donald Trump’s decision to pardon Joe Arpaio distressed observers across the political spectrum, from the speaker of the House to the American Civil Liberties Union. And while the Constitution gives presidents broad powers where pardons are concerned, this pardon could have consequences that reach beyond Arpaio’s fate or Trump’s approval ratings.

In July a federal judge found Arpaio guilty of criminal contempt for ignoring a court order that he stop detaining Latinos based solely on unfounded suspicion that they were in the country without permission. That order was the result of a previous lawsuit accusing Arpaio’s office of racially profiling, and frequently arresting, Latinos in violation of the Constitution. The former Arizona sheriff, who Rolling Stone called “America’s meanest and most corrupt politician” in 2012, was open about his disdain for that order, just as he vocally refused to recognize a Supreme Court decision striking down key provisions of his state’s immigration law.

This means that Trump’s pardon excused the violation of not simply a law, but the Constitution itself, which has distressed many legal experts. Noah Feldman, a professor of constitutional and international law at Harvard, wrote in an opinion column for Bloomberg that Arpaio’s crime represented “willful defiance of a federal judge’s lawful order to enforce the Constitution” and that the pardon reflected “outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority.”

The legal system works because law enforcement officials do what courts tell them. As such, the judiciary is the major check on law enforcement conduct. If someone like Arpaio has reason to believe that, even if convicted, he can expect a presidential pardon for blatant misbehavior, there is effectively no check at all.

Trump had the legal right to pardon Arpaio. But the act directly undermined the role of the judiciary.

The president has not hesitated to criticize federal judges who issued rulings he disliked in the past. He lashed out at a federal judge who temporarily blocked enforcement of his executive order banning entry for citizens of seven majority-Muslim countries and refugees, calling him a “so-called judge” and accusing him of “essentially [taking] law-enforcement away from our country.” He was equally outspoken when other judges blocked versions of the same rule. He has also blasted federal judges who ruled on his executive order regarding “sanctuary cities,” and he told The Wall Street Journal during his campaign that an American-born federal judge presiding over civil fraud lawsuits against Trump University had “an absolute conflict” because of his Mexican heritage. But as with most of Trump’s controversial statements, many of his supporters dismiss these incidents as mere bluster.

The Arpaio pardon, however, demonstrates that Trump is willing to put his disrespect for the courts’ independence into action. That it was the first pardon of his presidency sets an unsettling tone.

Many presidents have issued questionable pardons or granted clemency to controversial figures in the past. But usually they do it with one foot out the door. Bill Clinton’s pardon of Marc Rich came in 2001, and George H.W. Bush pardoned Caspar Weinberger and five others for their role in the Iran-Contra affair in 1992. Barack Obama decided to commute Chelsea Manning’s sentence during his final days in office. But Arpaio’s pardon is an unusually controversial one to issue less than a year into a president’s first term. Based on Trump’s rhetoric, it will probably not be the last controversial pardon he issues.

Racial profiling, after all, is not the only reason that many people disdain Arpaio, though it is the basis of his conviction. He has proudly boasted of setting up an outdoor jail in the Arizona desert (where temperatures regularly reach the triple digits) and his role in reviving doubts about Obama’s birth certificate ahead of the 2012 election. He allegedly ignored cases under his jurisdiction not related to immigration, including more than 400 cases of sexual assault and child molestation, according to a Justice Department investigation. His term as sheriff ended badly in 2016, when voters in Maricopa County (a red-leaning county that Trump carried) voted him out by a double-digit margin in favor of Democratic candidate Paul Penzone.

Normally the Justice Department’s Office of the Pardon Attorney makes pardon recommendations to a president. These are generally subject to a five-year waiting period after a conviction and almost always depend on some expression of remorse. But Trump has not demonstrated much concern for matters of tradition. Arpaio had not submitted an application to the office; he had not even been sentenced when the president pardoned him.

Nor has Arpaio demonstrated anything in the way of contrition. A pardon is “an expression of forgiveness” by the president, which wipes the pardoned individual’s record clean. It does not, however, mean the person is presumed innocent. It is also evidently not enough for Arpaio, who has called U.S. District Judge Susan Bolton biased and insisted he didn’t do anything wrong.

Trump remained defiant in the face of criticism, saying that Arpaio, who is 85 years old, “was treated unbelievably unfairly.” The Justice Department confirmed that the president did not consult department lawyers before announcing his decision.

As FiveThirtyEight’s analysis observed, the Arpaio pardon does have historical precedents – just not good ones. High-profile pardons and grants of clemency have gone to people who have violated civil rights, longtime friends and allies of the president, people in public office, people whose crimes took a human toll and people who have not applied for clemency. What makes Arpaio remarkable is that he falls into all of these categories at once. And even pardons with only one or two of these characteristics have been historically unpopular and politically damaging.

Short of impeachment, the Constitution offers no immediate check on a president’s ability to pardon. But in the longer term, voters can make their displeasure clear. Many historians believe that Gerald Ford’s unpopular decision to pardon Richard Nixon cost him a chance at re-election. In the meantime, however, Trump’s decision shows a disregard for judicial authority that should concern all of us, regardless of our political affiliations.

Vice President and Chief Investment Officer Paul Jacobs, of our Atlanta office, contributed several chapters to our firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55, including Chapter 12, “Retirement Plans;” Chapter 15, “Investment Approaches and Philosophy;” and Chapter 19, “A Second Act: Starting a New Venture.”

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