Why Trump’s pardon of Joe Arpaio isn’t like most presidential pardons

Andrew Rudalevige writes: Last month, as President Trump made broad claims about his power to pardon, I noted that he “may find out that something can be both legal and, simultaneously, an impeachable offense.” Last night, as the president issued a pardon to former Maricopa County, Ariz., sheriff Joe Arpaio, who was convicted of criminal contempt of court, some commentators argued that this was exactly the case.

Harvard Law professor Noah Feldman, for example, wrote after Trump’s belligerent Phoenix rally speech that such a pardon would represent an “assault on the federal judiciary, the Constitution and the rule of law itself” for which the “remedy is impeachment.”

It is hard to gauge the political fallout of the president’s decision — announced as it was late on a Friday night during an impending hurricane. Normally, though, as political scientist Jeffrey Crouch’s book on the pardon power makes clear, pardons are granted for two reasons: either to provide mercy or correct a miscarriage of justice, in an individual case; or on more general grounds based on public policy.

Trump’s pardon of Arpaio does not fit either category very well.

As regards mercy: Alexander Hamilton wrote in the Federalist that pardons were needed; otherwise, “justice would wear a countenance too sanguinary and cruel.” Presidents have sometimes pardoned elderly convicts, for instance, rather than see them die in prison.

Arpaio is 85, but he had not even yet been sentenced; that hearing was set for October. As a procedural matter, the guidelines of the Justice Department’s office of the pardon attorney — not binding on the president, of course, and not consulted in this instance — state that petitions for clemency are normally considered only after five years have passed after a conviction. (Further, in considering such petitions, “The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations.”)

Pardons also serve as a check against the judicial branch, when the president feels a grave miscarriage of justice has occurred. At his Phoenix rally, Trump seemed to make this claim, saying that “Sheriff Joe was convicted for doing his job.”

The problem with that, though, is that Arpaio was convicted for doing the opposite of his job. [Continue reading…]

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Comments

  1. This seems to be another one of those cases where the Founders, enamored of the concise, simply blundered. Article II, Section 2 contains this clause and nothing more on the power to pardon: “…he [the President] shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

    So it’s only a ‘norm’ that prevents the President from undermining the Federal judiciary at will. Trump’s conduct has the virtue of making us aware of the many tools of autocracy already present in the architecture of the US system.

  2. Paul Woodward says:

    Perhaps this also illustrates one of the problems that derives from having a written constitution: it invests too much authority in the literal text of the founding document.

  3. “…it invests too much authority in the literal text of the founding document.”

    This rings true, though the British alternative has always seemed strange to Americans. One effect has been a kind of scripturalization of the text, whereby it is both sacred in itself, uninterpretable without complex, contradictory, and often fantastical exegesis (e.g. ‘originalism’), and, in popular discourse, treated as a collection of snippets, with various factions prioritizing their favorite bits. It does appear that the British have evolved a more distributed and rational doctrine wrt pardons: “Today the Sovereign only grants pardons upon the advice of her ministers…”
    https://en.wikipedia.org/wiki/Pardon#United_Kingdom

  4. Paul Woodward says:

    There’s the irony: where a functioning monarchy still exists the monarch no longer exercises the regal power of granting pardons, whereas the presidency retains that kingly power.

  5. There could even be a long-running historical irony behind the irony that you note. One might argue that the Founders constructed a a modified version of the British political system as it existed in the late 18th century: time-limiting an elected king, subjecting him (and ‘he’ is how the president is referred to in the constitution, as in the Art II. Section 2 quote above) to various constraints, but still granting him huge regal powers, or at least not taking them away from him in any definitive way. This then (one might argue) created a more durable monarchical power than the monarchy it modified and attempted to restrain.

  6. Paul Woodward says:

    Definitely.

    During the 30 years I’ve lived in the U.S., it has often struck me that many Americans view monarchs as the epitome of success — the implication being that there’s nothing wrong with such a concentration of power if, in theory, everyone has a shot at attaining it. Presidents are indeed seen as temporary kings and thus there could be no more obvious way in which Trump could have his self-image as supremely successful confirmed than by his ascent to the White House throne.