President Trump’s Friday pardon of the recently convicted former sheriff of Maricopa County, AZ is the latest bright red neon warning sign that this president is determined to push our system of government to the breaking point in pursuit of his own narrow political interests. Some are arguing that this pardon itself constitutes an impeachable act; but setting that debate aside, there are layers of perniciousness to this action. As Bloomberg View columnist and Harvard law professor Noah Feldman wrote a couple days before the pardon was issued, Arpaio’s offense wasn’t simply breaking a law, but flouting the Constitution itself. Coming so soon after Donald Trump’s endorsement of racists and the neo-Confederate movement in connection with the white riot in Charlottesville, it’s clearly meant as a doubling-down on his supporters’ accurate perception of him as the white supremacist-in-chief. And in the context of Robert Mueller’s ongoing investigation into Donald Trump, it needs to be read as a signal to anyone caught up in potential crimes that the president is not afraid to use the power of the pardon in controversial, indeed, outrageous ways.
As Feldman summarizes, in 2011 a federal judge enjoined Arpaio to cease “saturation patrols,” which involved rounding up people because they appeared to be Latino, as this was found to constitute unconstitutional profiling and warrantless stops. However, Arpaio continued to run these sweeps, which in 2016 led the same judge to find the sheriff in civil contempt of court. This ruling led to a second proceeding to determine if Arpaio was in criminal contempt of court; another judge found this to be the case, and Arpaio was convicted in July of this year essentially for “willful defiance of a federal judge’s lawful order to enforce the Constitution.” I think it’s worth quoting Feldman at length here, because he sets out very clearly the implications of Trump’s pardon of such a crime:
The only way the legal system can operate is if law enforcement officials do what the courts tell them. Judges don’t carry guns or enforce their own orders. That’s the job of law enforcement.
In the end, the only legally binding check on law enforcement is the authority of the judiciary to say what the law is — and be listened to by the cops on the streets.
When a sheriff ignores the courts, he becomes a law unto himself. The courts’ only available recourse is to sanction the sheriff. If the president blocks the courts from making the sheriff follow the law, then the president is breaking the basic structure of the legal order.
From this analysis it follows directly that pardoning Arpaio would be a wrongful act under the Constitution. There would be no immediate constitutional crisis because, legally speaking, Trump has the power to issue the pardon.
But the pardon would trigger a different sort of crisis: a crisis in enforcement of the rule of law.
Apart from the grave issue of undermining the rule of law, let’s not forget the context of this pardon: it comes as Americans continue to grapple with the implications of the events in Charlottesville and the clear indications that Donald Trump sympathizes with the vile forces that rallied there. The line from Charlottesville to the Arpaio pardon is clear because of the nature of the offenses for which Arpaio is notorious, and which led to his conviction. For going on two decades, Arpaio has pursued racist and inhumane policing against the Latino community in Maricopa County. His offenses range from the aforementioned racial profiling, to a sadistic, overheated tent city for detainees, to the abuse of his office to pursue political vendettas, to the deaths of those in custody. His barbaric approach has been a stain on the American conscience for many years, and he has been not just a symbol but enforcer of institutionalized racism. It was a good day for American justice when Arizona voters voted him out last year.
So it is no coincidence that Arpaio is Trump’s first pardon, or that it comes as the latest act in the program of presidential-level racism that metastasized into undeniable public knowledge after Charlottesville. The Arizona Republic spells out what this pardon means for the country at large:
[Trump’s] pardon of Joe Arpaio elevated the disgraced former Maricopa County sheriff to monument status among the immigration hardliners and nationalists in Trump’s base. This erases any doubt about whether Trump meant to empower them after the violence in Charlottesville [. . .] Donald Trump’s pardon elevates Arpaio once again to the pantheon of those who see institutional racism as something that made America great [. . .] By pardoning Arpaio, Trump made it clear that institutional racism is not just OK with him. It is a goal.
As he has been doing emphatically since Charlottesville, and indeed since he launched his presidential campaign, Donald Trump is showing that he intends not to be the president of all Americans, but only of a subset for whom no constitutional outrage is too great, so long as it means that non-whites are scapegoated for the country's ills.
The pardon also needs to be seen in the context of Donald Trump’s broader malfeasance, from the anti-Muslim travel ban to his attempts to set up a voter commission intended to deny the vote to millions of Americans. Particularly, it needs to be seen in the context of Robert Mueller’s Russia investigation, with which by multiple accounts the president is obsessed. A pardon this early in his administration of a prominent ally sends a clear signal to those in the crosshairs of the investigation; as Democratic strategist Paul Begala told the New York Times, “The Arpaio pardon was awful in and of itself, but I also think it was a signal to the targets of the Mueller investigation that ‘I got your back.’”
At a minimum, the pardon demonstrates Trump’s willingness to use the pardon power for strictly partisan purpose. Bear in mind that this pardon did not follow the usual procedures followed by previous presidents; here is how the New York Times describes the normal process:
The Justice Department’s Office of the Pardon Attorney, which ordinarily makes pardon recommendations, has an elaborate and lengthy process for considering pardon applications. It generally requires a five-year waiting period, the office’s application instructions say, “to afford the petitioner a reasonable period of time in which to demonstrate an ability to lead a responsible, productive and law-abiding life."
The department, moreover, usually recommends pardons only after an expression of remorse.
“A presidential pardon is ordinarily a sign of forgiveness,” the instructions say. “A pardon is not a sign of vindication and does not connote or establish innocence. For that reason, when considering the merits of a pardon petition, pardon officials take into account the petitioner’s acceptance of responsibility, remorse and atonement for the offense.”
Mr. Arpaio, who has been anything but contrite, did not submit a formal application. Indeed, he had not yet been sentenced.
There are now also reports that in the months prior to this pardon, Donald Trump asked Attorney General Jeff Sessions and White House counsel Don McGahn II about whether the feds could drop the case against Arpaio. If not an outright attempt to obstruct justice, this is an interest in interference in the legal process that you never want a president to explore, and is more evidence of the president's disregard for our court system, and by extension the rule of law.
It might seem alarmist to extrapolate from a single pardon, but it is not hard to see that a president who chooses to use this Constitutional power repeatedly to protect himself and his supporters from bad acts would in effect end the rule of law in our country, a point that Bloomberg’s Feldman makes. And again, it is not simply this pardon, but its conjunction with so many other bad acts and behaviors of this president, that make us not simply fear executive excess, but show us that such presidential excess is already in full swing.
