On Friday night, August 25, as one of the worst natural disasters in United States’ history attacked the Texas coast, the President attacked the foundation upon which the country has flourished since its founding: the separation of powers and the rule of law. With a stroke of the pen, Donald Trump put the entire Judiciary in the eye of a hurricane by issuing a Presidential pardon for Arizona sheriff, Joe Arpaio.
Putting aside the fact that the controversial pardon ignores Justice Department guidelines, the unprecedented use of the pardon in the sheriff’s case has led legal scholars to question its legitimacy. Arpaio’s office had a history of openly racist policies, including arresting people for “appearing” Mexican. Eventually, Arpaio was found in criminal contempt for failing to follow a federal court order to cease racial profiling.
At an Arizona rally days before the pardon was issued, the President, a long-time Arpaio supporter, hinted of it as he rhetorically asked his followers, “Was Sheriff Joe convicted for doing his job?” to which the audience resoundingly replied, “Yes!”
The implications of Trump’s pardon, for a lawman, convicted of not doing his job, if constitutional may wreak more damage to the nation than a dozen hurricanes.
By ending the prosecution of Sheriff Joe, Trump has used the Presidential pardon to marginalize the power of the Federal Judiciary. Trump has given law enforcement officers a green light to ignore judicial rulings contradicting the President’s beliefs, negating the rule of law.
Trump’s decision has been roundly criticized by members of both parties, as well as constitutional scholars and most sentient beings. Arizona Senator John McCain argued,
“The President has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law….”
Congresswoman Nancy Pelosi, was less circumspect when she tweeted,
[The] “pardon of fellow birther Arpaio makes mockery of rule of law, & says communities of color can be targeted & abused w/ total impunity.”
House Speaker Paul Ryan openly criticized the President’s decision, marking one of the first times he has done so since Trump began his Presidential campaign. In a release by his office, Ryan said through his spokesperson, Doug Andres,
“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.”
Law professor at the New York University School of Law, and former White House counsel to president Barack Obama, wrote in the Lawfare Blog,
“He [Trump] has managed, however, to make a very clear statement about the ‘rule of law’ in his government, and he has miscalculated if he somewhat imagines that it will not come back to haunt him.”
Besides attacking the checks and balances, the President has just blown another foghorn to white supremacists, announcing his willingness to use his presidential powers in support of their racist beliefs.
An additional implication of Trump’s decision to exercise the pardon privilege is the signal it sends to the ongoing Russia Investigation. There is a reasonable argument that Trump has attempted to remove one of Robert Mueller’s most valuable investigatory tools. If minor players in the unfolding Russia scandal know a Presidential pardon awaits, the threat of jail time disappears, and their willingness to cooperate with the investigation is dramatically compromised.
In the chess game between the President and Robert Mueller, the man investigating him, Trump’s pardon was immediately parried by the leaked revelation that Mueller is working with the New York Attorney General, Eric Schneiderman. Despite Trump’s right to pardon anyone of a federal crime, the privilege does not apply to convictions by individual states, hence the significance of the announcement.
Finally, there is debate on how far the President’s Constitutional power to pardon extends. One argument is based on the notion that the right does not extend to rights included in amendments to the Constitution ratified after the President’s absolute right to pardon was established in Article II, Section 2 of the Constitution. Does the President have the right to pardon individuals if doing so violates a person’s constitutional rights, thus affecting their rights to due process that every citizen in entitled to, as defined in the 5th Amendment? In a letter from Project Democracy to the Public Integrity Section, Criminal Division of the DoJ, Democracy Now wrote,
Under the Due Process Clause, no one in the United States (citizen or otherwise) may “be deprived of life, liberty, or property, without due process of law.” But for due process and judicial review to function, courts must be able to restrain government officials.
The U.S. District Court Judge, Susan Bolton, who was presiding at the sentencing hearing, seems open to the legitimacy questions that have been asked. When Sheriff Joe’s legal team filed a motion that his conviction be vacated because of the pardon, the judge did not do so. Instead, she asked both the Justice Department and Arpaio’s team to file briefs on why she should or should not vacate the conviction.
Ultimately, Donald Trump’s attempt to pardon Joe Arpaio tests the resiliency of the foundation upon which the nation rests. From a historical perspective, the nation will weather this storm and come out that much stronger. That being said, if the United States is on the cusp of a change of course so massive that its portents cannot be appreciated beforehand, the storm may have only just begun.