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…]