As I read all the discussions around Trump’s pardon of Joe Arpaio, a few articles keep sticking in my head:
- The Power to Pardon. First, to set the context, listen to this excellent TrumpConLaw podcast on the Pardon Power. In short, the President can pardon whomever he wants, but only for Federal crimes, only after the crime has been committed, and it can’t be a pardon from impeachment. Most Presidents (and Trump isn’t “most Presidents”) pardon on the recommendation of the Justice Department, only after some jail time has been served, and for the controversial ones, as their last action as President before they leave so they don’t have to suffer the political ramifications. But, as I noted, Trump isn’t “most Presidents”. He’ll get to deal with the fall out.
- Why He Did It? (Take One). Vox has an interesting explanation of why he did it: To send a message that the enforcement of law and order takes priority over the actual laws. Arpaio was convicted of violating civil rights in order to enforce his interpretation of law and order, which is congruent with Trump’s interpretation. Or, as Vox put it, “Joe Arpaio recognized the fundamental truth of Trump’s worldview even before Trump did: that promising “law and order,” and protection from social disorder in the form of unauthorized immigration and street crime, didn’t require you to actually adhere to the rule of law.” This sends message #1 from Trump: “If you are doing what I like, I’ll protect you from the law.”
- Why He Did It? (Take Two). The LA Times presents a different take on the subject: the Federal Government expects local help on dealing with immigration issues, to the extent they will shield those who violate civil rights to take actions against immigrants. It sent the message that using racial profiling was acceptable in Trump’s book.
- Why He Did It? (Take Three). The Atlantic captures yet a third message in Trump’s pardon: Contempt for judges and the rule of law. As the Atlantic writes: “The Arpaio case was the very integrity of the federal judiciary. He was not convicted of an ordinary crime, but of deliberately disobeying a federal court order and lying about that; but beyond that, during the litigation that led to his conviction for criminal contempt, he hired a private detective to investigate the wife of a federal judge hearing a case against his office. Any judge can understand the threat posed by law enforcement personnel who seek to strike back at judges and their families, perhaps for purposes of blackmail or revenge—and the deep arrogance of a president who regards such behavior as praiseworthy. In fact, since even before the election, Trump has brandished his hostility to judges almost as aggressively as his disregard of racial decency. When federal district Judge Gonzalo Curiel was assigned the Trump University civil fraud case, Trump attacked the Indiana-born Curiel in front of a campaign rally as “Mexican” and “a total disgrace.” When Judge James Robart (a George W. Bush appointee) of the District of Washington enjoined the first version of Trump’s “travel ban,” Trump on Twitter dismissed Robart as a “so-called judge” and told his supporters “If something happens blame him and court system.” When another District Judge enjoined his “sanctuary cities” defunding order, Trump publicly threatened to break up the Ninth Circuit. When a terror cell carried out a car attack in Barcelona earlier this month, Trump immediately zeroed in on the “travel ban” case, now pending before the Supreme Court: “The courts must give us back our protective rights,” he tweeted. Every indication is that Trump will respond to an adverse Supreme Court ruling on any important issue with a full-throated assault on the court and on the very idea of judicial independence. That the court’s majority is conservative and Republican won’t matter.”
In short, the simple takeaway is this: As President, Trump has the authority to pardon whomever he wants for a Federal crime. Once pardoned, one cannot un-pardon. However, the President has to deal with the fallout of his actions, and this will add to Trump’s shedding of any discretionary supporters. All that will be left is the hard-core (“rabid”?) base of those that place ideology and hatred of “the other” over the laws of this country. Trump never had any progressive support, and those who were supporting him for fiscal conservatism are coming to realize that there are better ways to achieve their goals, and better politicians to back to do so.