After telling Fox News he was thinking strongly about it, and dangling it as a bright, sparkly object before an audience of his adultators, the President pardoned Joe Arpaio tonight.
Four days after offering it as a garment, tossed out in a political strip-tease for supporters at a campaign rally, the President granted an unconditional pardon to a man without even saying what it was for.
He ignored the rules of the Justice Department and its Office of the Pardon Attorney.
So what? may be the rejoinder. After all, this evening, the President also lost a loyal neo-Nazi on his staff, put his transgender ban into place, and left for a weekend in the country as millions face a Category 4 hurricane.
Here's why it matters.
1. He has committed obstruction of justice. Joe Arpaio was convicted of criminal contempt of the United States courts by a federal district judge after Arpaio refused to stop violating federal law in his deportation roundups.
Just 26 days after conviction, and before sentencing, the President intervened to block a federal criminal court case from completion. He pardoned a man who considers he did nothing wrong, and who will spend the rest of his life on a well-paid victory lap, thumbing his nose at the judicial process.
2. He has exhibited, again, his contempt for the federal courts, federal law enforcement, and the US Code. Sure, he may have the right to issue the pardon, but that doesn't make it a good idea in every instance.
3. More important than that general message to his friends, that if troubles come over the remainder of the President's tenure, he has sent a message to the federal investigators and special counsel that he is willing to hand out Get Out of Jail Free cards to his Russia investigation comrades at the first hint of trouble- up to, and including members of his family who staff his administration and cannot be fired.
We have talked before, in my life, of presidents who acted above the law. This President is making moves to become so in truth and fact.
*****
Alexander Hamilton, The Command of the Military and Naval Forces, and the Pardoning Power of the Executive
From the New York Packet, Tuesday, March 25, 1788.
...[The President] is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.'' Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men...
PUBLIUS.
The 45th President, Phoenix, Arizona, August 22, 2017:
(APPLAUSE) By the way, I'm just curious. Do the people in this room like Sheriff Joe?
(APPLAUSE)
So, was Sheriff Joe convicted for doing his job? That's why...
(APPLAUSE)
He should have had a jury, but you know what? I'll make a prediction. I think he's going to be just fine, OK?
(APPLAUSE)
But -- but I won't do it tonight, because I don't want to cause any controversy. Is that OK? All right?
(APPLAUSE)
But Sheriff Joe can feel good. The people of Arizona know the deadly and heartbreaking consequences of illegal immigration, the lost lives, the drugs, the gangs, the cartels, the crisis of smuggling and trafficking. MS-13 -- we're throwing them out so fast, they never got thrown out of anything like this. We are liberating towns out on Long Island. We're liberating.
Can you imagine, in this day and age -- in this day and age in this country, we are liberating towns. This is like from a different age. We are taking these people. They don't shoot people, because it's too fast and not painful. They cut them up into little pieces. These are animals. We are getting them out of here. We're throwing them in jails, and we're throwing them out of the country. We're liberating our towns.
(APPLAUSE)
You're seen it. You've lived it, and you elected me to put a stop to it. And we are doing a phenomenal job of putting a stop to it. That I can tell you.
(APPLAUSE)
Statement by The White House Press Office, August 25, 2017:
"Today, President Donald J. Trump granted a Presidential pardon to Joe Arpaio, former Sheriff of Maricopa County, Arizona.
"Arpaio's life and career, which began at the age of 18 when he enlisted in the military after the outbreak of the Korean War, exemplify selfless public service. After serving in the Army, Arpaio became a police officer in Washington, D.C. and Las Vegas, NV and later served as a Special Agent for the Drug Enforcement Administration (DEA), formerly the Bureau of Narcotics. After 25 years of admirable service, Arpaio went on to lead the DEA's branch in Arizona.
"In 1992, the problems facing his community pulled Arpaio out of retirement to return to law enforcement. He ran and won a campaign to become Sheriff of Maricopa County. Throughout his time as Sheriff, Arpaio continued his life's work of protecting the public from the scourges of crime and illegal immigration. Sheriff Joe Arpaio is now eighty-five years old, and after more than fifty years of admirable service to our Nation, he is worthy candidate for a Presidential pardon."
A brief Politifact review/context summary is helpful:
President Donald Trump has said he’s considering a pardon for Joe Arpaio, the former sheriff of Maricopa County, Ariz.
Arpaio, a controversial figure for his tough stance against immigration, was convicted on July 31 for criminal contempt when he refused to follow a court order to stop detaining undocumented immigrants.
Trump, who has made opposition to immigration a centerpiece of his political efforts, told Fox News on Aug. 13 that he is "seriously considering a pardon for Sheriff Arpaio."
Then, during a Trump rally in Phoenix -- Arpaio’s backyard -- on Aug. 22, the president told the crowd, "I'll make a prediction. I think he's going to be just fine, OK? But I won't do it tonight, because I don't want to cause any controversy. Is that OK? All right? But Sheriff Joe can feel good."
With Trump on record considering a pardon for Arpaio, we decided to take a closer look at how unusual a pardon of the ex-sheriff would be.
Would Arpaio qualify for a pardon?
Under the Constitution -- the only authority that really matters -- the answer is yes.
As we’ve noted, Article II, Section 2, of the Constitution says the president "shall have the Power to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment."
The power of the pardon "is considered one of the least limited powers of the executive," said James Robenalt, a lawyer at the firm Thompson Hine.
The phrase "offenses against the United States" is generally meant to address federal criminal cases and to rule out state-level cases and civil cases. But Arpaio’s conviction was in a federal case, so that would not be a barrier.
Would a pardon of Arpaio be unusual?
Here too, the answer is yes.
"For President Trump to give such a pardon, he would be sidestepping all the regulations set up by the Justice Department’s Office of the Pardon Attorney, but he has the absolute right to do so," Robenalt said.
So what are those regular procedures? Here are some of them, according to the Office of the Pardon Attorney:
• Exhaustion of alternatives: No petition can be be filed as long as "other forms of judicial or administrative relief are available."
• Timing: The guidelines require petitioners to wait at least five years after a conviction or their release from confinement, whichever is later, before filing an application.
• Accepting responsibility: Accepting responsibility is an "important" consideration. "A petitioner should be genuinely desirous of forgiveness rather than vindication," the guidelines say.
• An examination of the petitioner’s case. The FBI typically conducts a thorough investigation, including "financial and employment stability, responsibility toward family, reputation in the community, participation in community service, charitable or other meritorious activities" and military record. After this is complete, the process of working through the department and the White House can take years.
How would Arpaio’s case fall short of these regulations?
For starters, Arpaio’s conviction occurred just a few weeks ago -- not close to five years after his release from incarceration.
Not only has he not finished his sentence, but his lawyers have said he’ll be appealing. This would mean he hasn’t exhausted all of his legal alternatives, and it would also mean he hasn’t accepted responsibility.
How unusual would it be for Trump to pardon someone so early in his tenure as president?
Pardoning early in a presidency was once common, but it is no longer the case.
Barack Obama’s first act of clemency (either a pardon or a commutation) came on Dec. 3, 2010, or 23 months into his tenure. George W. Bush’s first came on Dec. 20, 2002, also 23 months in. Bill Clinton’s came on Nov. 23, 1994, or 22 months in. You have to go back to George H.W. Bush to find a pardon in the first few months of a presidency -- on Aug. 14, 1989, or seven months into his tenure. There were nine pardons on that day, the most prominent of which was issued to Armand Hammer, who headed Occidental Petroleum and was pardoned for a misdemeanor campaign-finance violation 13 years earlier.
Are the Justice Department guidelines binding?
No. The guidelines themselves state, "The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution."
Rather, the value in the guidelines is to provide some degree of fairness and balance.
"The review gives another layer of checks to what is essentially an untrammeled power, as well as a sense of regularity," said Daniel Kobil, a law professor at Capital University.
Have the guidelines been ignored in the past?
Yes.
One of the most controversial pardons in presidential history was Bill Clinton’s pardon of Marc Rich, who was indicted in 1983 on charges of tax evasion and illegally buying oil from Iran. He fled the country and was considered a fugitive, but just before leaving office, Clinton pardoned Rich, whose ex-wife Denise was a major Democratic donor.
Because of Rich’s fugitive status, "DOJ wouldn't have recommended a pardon there," said Brian Kalt, a Michigan State University law professor who has studied pardons.
In fact, the department’s pardon attorney at the time, Roger Adams, testified how the White House essentially asked his office, as Clinton’s time in office was winding down, to put together paperwork to give the impression that Rich’s application had undergone their normal level of review. It had not, and the fallout continued to dog the deputy attorney general, Eric Holder, when he was being considered for attorney general eight years later. (Clinton later acknowledged that the Rich pardon "was terrible politics. It wasn't worth the damage to my reputation.")
Other presidents have pardoned political allies, to varying degrees of criticism. Gerald Ford pardoned his predecessor, Richard Nixon, after the Watergate scandal. The elder Bush pardoned Caspar Weinberger and several other officials facing a special prosecutor looking into the Iran-Contra affair. The younger Bush commuted the sentence of Scooter Libby, a former aide to Dick Cheney who was convicted of charges related to the outing of a CIA operative.
Still, Kobil said that such an early pardon could set a "particularly low bar for the use of the pardon power" during Trump’s presidency.
"It could pave the way for pardons for any type of political ally," he said. "It is not utterly unprecedented, but it is incredibly unusual, and it is directly contradictory of what the Justice Department tells the public about their eligibility."
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