The Pardoning Of “The World’s Toughest Sheriff” Joe Arpaio

In a move that has drawn significant criticism, U.S. President Donald Trump announced on Friday that he had issued a presidential pardon for former Arizona Sheriff Joe Arpaio.

Arpaio, formerly the sheriff of Arizona’s Maricopa County, was convicted in July 2017 of criminal contempt of court for ignoring a federal judge’s order to stop detaining people based solely on suspicions of illegal entry into the country. Arpaio had gained notoriety in Arizona and beyond for his tough-on-crime rhetoric and his aggressive approach to combat illegal immigration. His sentencing for the contempt of court conviction has been scheduled for early October 2017. By issuing the pardon, Trump bypassed the judicial process and ensured that Arpaio would serve no jail time.

The decision to pardon the former sheriff was not entirely unexpected. In August, Trump told Fox News that Arpaio was “a great American patriot [who had] done a lot in the fight against illegal immigration,” and said that he was seriously considering pardoning him. Arpaio, in turn, is one of Trump’s most staunch political allies and was one of the first to publicly support the presidential campaign. According to the New York Times, Trump suggested in a rally last Tuesday that Arpaio’s conviction was unjust, but said he would not pardon Arpaio that night because he did not want to “cause any controversy.” Instead, news of the pardon was announced on Friday at 8 p.m. Washington D.C. time, as a category five hurricane was bearing down on Texas.

Trump’s pardoning of Arpaio is not the first presidential pardon to cause controversy. Bill Clinton was criticized for pardoning Marc Rich, a fugitive financier and Democratic Party donor, on his last day as president. Yet, Trump’s decision to grant clemency to a man made famous for racially profiling Latinos and incarcerating immigrants in inhumane conditions has drawn criticism from both sides of the political aisle.

Three of America’s largest newspapers, The New York Times, USA Today, and The Wall Street Journal, have published editorials strongly denouncing the pardoning of Mr. Arpaio. The editorial board of USA Today said the pardon “elevates Arpaio once again to the pantheon of those who see institutional racism as something that made America great,” while The New York Times’ editorial board characterised the pardon as “scorning the Constitution itself.”

Criticism came not just from central or left-leaning news publications, but also from traditionally conservative media. The Wall Street Journal’s editorial board called the decision to pardon, “a depressing sign of our hyper-politicized times,” while Arizona’s largest newspaper, the traditionally conservative-leaning Arizona Republic, called the pardon “a sign of pure contempt for every American who believes in justice, human dignity and the rule of law.”

One of the reasons Arpaio’s pardon is so contentious is that it goes against long-standing Justice Department policy on presidential pardons. The Justice Department’s Office of the Pardon Attorney has a complex and lengthy process for pardon applications, which it outlines on its website. Typically, pardon applications require a waiting period of five years, “to afford the petitioner a reasonable period of time in which to demonstrate an ability to lead a responsible, productive and law-abiding life.” Controversially, Arpaio did not submit a formal application for clemency.

In addition, the Justice Department usually recommends pardons only after an expression of remorse from the applicant. According to the Department’s pardon application instructions, “a pardon is not a sign of vindication and does not connote or establish innocence,” and as such, “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.” Yet, Arpaio has shown no remorse for his actions. In fact, he appears to view himself as a victim, telling Fox News last week, “if they can go after me, they can go after anyone in this country.”

While Trump’s decision to pardon Arpaio was unconventional, it was almost certainly legal. The U.S. Constitution gives the president an extremely broad power to grant pardons, stating that presidents “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” While the president can only pardon offences at the federal level, there are few other restrictions to pardoning power. In 1866, the U.S. Supreme Court held that the presidential pardoning power was “unlimited except in cases of impeachment,” extending “to every offense known to the law.”

Despite its legality, however, Trump’s decision to grant Arpaio executive clemency is concerning because it demonstrates a profound lack of respect for the rule of law. By short-circuiting the regular judicial process and pardoning Arpaio, Trump sends a message that law enforcement can ignore court orders and escape punishment so long as they have a political ally in the White House. As the Wall Street Journal’s editorial board warns, “down that road lies anarchy.” That this pardon could also have a potentially chilling effect on special counsel Robert Mueller’s ongoing Russian investigation is particularly concerning.

The pardon is also an affront to the victims of Arpaio’s discriminatory policies. As the editors of The Arizona Republic point out, the majority of Latinos in Arizona are not undocumented immigrants, yet they were subject to heightened scrutiny during Arpaio’s time as Sheriff. Arpaio’s pardoning “robbed the people hurt by his policies of justice – even before a judge could mete out a sentence,” and was “a slap to those who worked through the judicial system to make Arpaio accountable.”

Given the legality of Arpaio’s pardon, however, there are very few options available to those seeking redress. In fact, many legal scholars argue that the only possible redress is impeachment. Writing for Bloomberg, Noah Feldman, a professor of constitutional law at Harvard University, argues that this was not an ordinary exercise of the pardoning power, but was instead “an impeachable offense.” Yet, impeachment is itself a drawn-out, politicized process, and one unlikely to be pursued by current Congressional Republicans.

That does not mean, however, that American voters should not put pressure on their political representatives to condemn the pardoning of Arpaio. Bipartisan criticism of Trump’s decision may be the only way to prevent further politicization of the presidential pardon. While many Democrats have condemned the pardon, some Congressional Republicans have also spoken out. Arizona Senator John McCain, for example, released a strong statement asserting that “no one is above the law,’ and characterizing the President’s decision to pardon Arpaio as undermining his claim for the respect of rule of law. Speaker of the House, Paul Ryan, said through a spokesman that he disagreed with the pardon. Doug Andres, Ryan’s spokesman, said that “Law-enforcement officials have a special responsibility to respect the rights of everyone in the United States. We should not allow anyone to believe that responsibility is diminished by this pardon.”

As Adam Liptak wrote in a New York Times Op-Ed, Mr. Trump’s use of the pardon was particularly odious because he “used his constitutional power to block a federal judge’s effort to enforce the Constitution”. By pardoning Arpaio, President Trump “excused the lawlessness of an official who had sworn to defend the constitutional structure.” In order to protect the rule of law and uphold the Constitutional rights of all Americans, more Americans, regardless of their political party, must speak out against the pardoning of Joe Arpaio.