Democracy Dies in Darkness

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The problem with Joe Arpaio's pardon isn't the process. The problem is Joe Arpaio.

By Josh Chafetz

August 26, 2017 at 12:36 PM

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Joe Arpaio's illegal-immigration crackdown made him a polarizing figure and an early ally of President Trump. (Meg Kelly/The Washington Post)

After days of hinting about it, President Trump finally pardoned Joe Arpaio, the former Maricopa County, Ariz., sheriff best known for his hostility toward undocumented immigrants and his brutality toward prisoners in his custody. Arpaio had been convicted in July of criminal contempt of court for defying an order to stop detaining suspected undocumented immigrants who had not broken any state law. Trump's pardon ensures that Arpaio will not serve any time for the offense.

Predictably, outrage swiftly followed the pardon. Pointing both to the crime for which Arpaio was convicted and the fact that Trump did not make use of the Justice Department's normal machinery for considering pardons, many have insisted that the president's action flouts the rule of law. Some have even argued that it's outright unconstitutional.

But that's the wrong way to criticize the Arpaio pardon. The Constitution grants the president the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." The power is broad and (except for the impeachment carve-out) unqualified.

Related: [I was one of Joe Arpaio’s victims. He doesn’t deserve a pardon.]

More importantly, one can easily imagine situations in which defiance of a court order is wholly justified, and we would want the pardon power to be available in those cases. Consider the following hypothetical (inspired by, although differing in important respects from, the facts of a 1965 case): In the Deep South during the civil rights movement, a heroic county registrar of voters defies an order issued by a racist federal judge to purge the voting rolls. A jury — from which African Americans were, of course, excluded — convicts the registrar of criminal contempt. A pro-civil-rights president then immediately issues a pardon.

Many people, myself included, would find that pardon not only unobjectionable, but indeed, laudatory. Formally, however, that hypothetical process looks similar to the process Trump used: A president, without waiting for the usual Justice Department procedures to run their course, pardons an ideological ally who had been convicted of contempt of court for using state power in defiance of a federal court order.

This does not, however, suggest that the Arpaio pardon was acceptable. Instead, it points to the limits of thinking about the issue formally. Formal reasoning is seductive, because it holds out the false promise of neutrality — we don't have to talk about messy issues such as racism, xenophobia or state brutality; instead, we can just dwell on whether normal procedures were followed and whether the president was insufficiently deferential to a judge. We can call those considerations "the rule of law," because that's something everyone can get behind.

But as the hypothetical pardon makes clear, we don't think normal procedures should always be followed, and we don't think judges should always be obeyed. Especially for something like the pardon power, which by its very nature exists at the edges of the law, trying to find formal, neutral limiting factors that really ought to apply across the board will prove difficult, if not impossible.

So how should we talk about the Arpaio pardon? Substantively. More specifically, we should talk about why, of all the people with criminal records in this country, Trump chose to make Arpaio his first pardonee.

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The controversial sheriff of Arizona’s Maricopa County, Joe Arpaio, announced his endorsement of Republican presidential contender Donald Trump saying that it was a "no brainer." (Reuters)

As sheriff, Arpaio was known for a hostility toward undocumented immigrants that was functionally indistinguishable from hostility toward Latinos. He conducted sweeps of Latino neighborhoods and stops of Latino drivers in attempts to find undocumented immigrants. He held inmates in brutal and degrading conditions. He installed publicly accessible webcams so that the public could gawk at inmates, and one of those cameras showed female prisoners using the toilet. And he was a leading proponent of the racist lie that President Barack Obama was not a natural-born American citizen.

Related: [The year I spent in Joe Arpaio’s tent jail was hell. He should never walk free.]

Arpaio's entire claim to national recognition was based on his being a xenophobe, a racist and an officer of the machinery of government who relished wielding that machinery to degrade some of the most powerless members of our society.

The White House statement announcing the pardon claimed that, "Throughout his time as Sheriff, Arpaio continued his life's work of protecting the public from the scourges of crime and illegal immigration." In a tweet, Trump called Arpaio an "American patriot" and wrote, "He kept Arizona safe!"

In other words, Trump pardoned Arpaio because of his actions as sheriff, actions that are consistent with the platform on which Trump campaigned and has attempted to govern. Those actions were appalling — and not only is Arpaio unremorseful, but Trump has actually held him up as a model to be emulated.

Let's focus on that.

Read more:

Yes, Trump can legally pardon himself or his family. No, he shouldn't.

Sitting presidents can't be prosecuted. Probably.

Impeaching Trump wouldn't help restore the rule of law


Josh Chafetz is a professor of law at Cornell Law School. He is the author of "Congress’s Constitution: Legislative Authority and the Separation of Powers."

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