The Problem of Donald Trump’s Constitution, Part II: The Prospect of an Arpaio Pardon

Bob Bauer
Thursday, August 24, 2017, 9:00 AM

Sheriff Joe Arpaio speaking with supporters of Donald Trump on June 18, 2016. (Photo: Gage Skidmore)

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President Trump seems enthralled by his possession of the pardon power, and now he has in mind Joe Arpaio, the former sheriff of Maricopa County in Arizona, as the first object of his beneficence. He entertained his Phoenix political rally with the suggestion Arpaio merited a pardon; he hinted that he would grant one. Arpaio was, the President declared, “convicted for doing his job.” The news the following day included a report that the White House had prepared pardon papers. Should Trump follow through, it would be a fateful step for this presidency. While he has rejoiced over the “complete” scope of the pardon power, he might not know or fully appreciate the risks of his enthusiasm. One hopes that the White House Counsel, among others, sets him straight.

Any president considering a pardon in the normal course would solicit and make publicly available the recommendation of the Department of Justice. The Department, however—and here we are speaking specifically of Trump’s Department—secured the very conviction for criminal contempt that would be the subject of the pardon. Now, a president can ignore the departmental recommendation: The power is his, of course, and not the Attorney General’s. But presidents are sensitive to the Department’s recommendations, and for good reason. The pardon power sits uneasily with the belief that ours is “a government of laws, not of men,” and the DOJ’s participation is one check on the abuse of this extraordinary authority. In answering the call for public accountability President Trump would have every incentive to involve and obtain the support of the Department. His failure to do so, or his proceeding over the Department’s objections, would ring a loud alarm.

It is very difficult to imagine that Attorney General Sessions would recommend a pardon of a law enforcement officer convicted of willfully and openly flouting a federal court order. And Mr. Sessions’s disinclination to give his boss cover would be all the greater in a case involving racial profiling, defiance of constitutional limits on local law enforcement, unprofessional conduct over an extended period of years, and to this day, the prospective pardon recipient’s refusal to accept responsibility for his acts.

The White House Counsel preparing the pardon papers would also need to labor hard, and would inevitably fail, to to bring this potential grant within the accepted norms for the grant of pardons. Among the more conventional considerations: the case is fresh, and with Arpaio’s lawyers readying the appeal of a decision issued in July, the president would be intervening in the middle of a legal proceeding yet to run its course. If Trump just jumps in and by executive fiat ends the matter, a pardon will have every appearance of being direct interference in the administration of justice. In his capacity as the Chief Executive, the President has already had exceptional difficulty grasping and respecting the independent and impartial operation of federal law enforcement. With this act, Mr. Trump dramatically escalates the assault on these limits.

Then there is the large and more basic question of the purpose behind a grant. It does make a difference why a president grants a pardon. It is an act for which he or she is accountable under the Constitution: As Justice Holmes stated almost a century ago in Biddle v. Perovich, the pardon power is “part of the constitutional scheme,” to be exercised in the advancement of the “public welfare. Or as Alexander Hamilton argued it in Federalist No, 74, it is a “benign prerogative” in the interests of the “tranquility of the commonwealth.” Like all of a president’s actions, its use is subject to the overall commitments entailed in his oath of office. Hamilton assured his Federalist readers that the individual occupying the Office of the President could be trusted to act on this extraordinary authority with a “sense of responsibility” marked by “scrupulousness and caution,” “prudence and good sense,” and “circumspection.”

In the case at hand, Trump would be pardoning a political ally who quite deliberately brought his legal problems on himself—and did so as a law enforcement officer. The President has already made a political issue, indeed a political spectacle, of this—perhaps to placate his restive, angry Bannonite critics. There is no better evidence than his decision to feature the possible pardon at a political rally. When Trump asked, “Do people in this room like Sheriff Joe,” he was quite explicit about the very defined political audience for the pardon—the “people in this room.” He paid little heed to the seriousness of the matter in declaring that Sheriff Joe was “convicted for doing his job.” That, of course, was not the reason that Arpaio was convicted, and it is beneath the dignity of the country’s Chief Executive to yet again demean and ridicule a court in this fashion. On this occasion, he is also scorning the judiciary for a ruling in a case brought by his own prosecutors.

The papers now being put together in the White House will surely apply a few cosmetic touches to the pardon if Trump proceeds with it. It will do its best to supply a counterfeit version of “scrupulousness,” “prudence,” and “sense of responsibility.” But it will be too late.

If the President does pardon Arpaio, he may do so in the belief that it will be all political gain and no cost. He will be wrong. An act of this kind cannot fail to affect Mueller and his team as they investigate obstruction of justice and evaluate evidence bearing on the President’s motives and respect for law. Trump will have added more telling detail to the picture prosecutors are piecing together of “how he operates.”. Congress may now or in the future also have occasion to conduct its own inquiry.

And while the president may well get away with the specific act of pardoning Arpaio, this action will not be without effect on future calls for impeachment. Unlike a pardon of himself, family members, or aides in the Russia matter, pardoning Arpaio would probably not result in the immediate demand for an impeachment inquiry. If, however, impeachment pressure increases, or a formal impeachment inquiry is launched on the basis of Russian “collusion,” obstruction, or on other grounds, an Arpaio pardon in the background will be highly damaging to the President’s position. It will immeasurably strengthen the hand of those arguing that Donald Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to be entrusted with the presidency.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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