The Arpaio Pardon Dangerously Accelerates Trump’s Assault on the Rule of Law

This article originally appeared on this site.

On his last day of office, in 2001, President Bill Clinton pardoned Marc Rich, the billionaire commodity trader on the F.B.I.’s “Ten Most Wanted” list for crimes spanning from tax evasion to illegal trading with Iran during the American hostage crisis. The pardon was controversial because it was so overtly political—Rich’s ex-wife, a major Democratic Party donor, along with a powerful coterie of Israeli officials, had lobbied hard for it—and Clinton himself came to regret the pardon for the damage it did to his reputation.

Rank cronyism and political expediency are again on display in President Donald Trump’s recent pardon of Joe Arpaio, the former sheriff of Maricopa County. Arpaio was one of Trump’s earliest and most outspoken political supporters, and a stalwart proponent of the false “birther” claim, which Trump rode to political prominence. Trump announced the likely pardon of Arpaio at the most inappropriate possible venue—a raucous Arizona political rally paid for by his 2020 reëlection campaign. And the pardon was granted hours before a Category 4 hurricane was projected to hit the coast of Texas and cause “catastrophic and life-threatening” flooding. But the Arpaio pardon accelerates Trump’s assault on the rule of law and legal norms far beyond anything that could be said of Clinton’s pardon of Rich.

Fully appreciating what Trump has wrought, constitutionally speaking, requires recognizing that the U.S. executive branch is an enormous and complex machine. It dwarfs the other two branches, with over two million civilian employees. And since Watergate and the release, in 1976, of the Church Committee report, which detailed wider executive-branch abuses, this vast federal bureaucracy has increasingly accreted an intricate array of wheels and pulleys designed to insure that the President and his people not only enforce legal authorities but also abide by them. The Arpaio pardon is a perfect conflagration of all of the ways that Trump has systematically undermined these authorities over the course of his first seven months in office. It is nothing less than a multipronged attack on the executive branch’s own commitment to the rule of law.

This point has been overshadowed somewhat by Arpaio’s track record of brutal civil-rights violations, a subject that has justifiably attracted great public scrutiny. Arpaio’s crime was willfully defying a court’s attempt to halt some of these violations—specifically, his contempt of a federal court order that he stop racially profiling and detaining Latinos on nothing more than his suspicion of their immigration status. As a result, criticism of Trump’s pardon for encouraging civil-rights abuses has gone hand-in-hand with extensive commentary on how it undermines judicial authority. Noah Feldman, a professor at Harvard Law School, argued last week that, because “the only legally binding check on law enforcement is the authority of the judiciary to say what the law is,” a President who blocks the courts from sanctioning a sheriff who intentionally defies the law “is breaking the basic structure of the legal order.”

Clearly, Trump’s disdain for judicial authority should trigger alarm, but it is far from the only constitutional concern implicated by the Arpaio pardon. To start, Trump has smashed through an even more basic set of norms that apply to the Chief Executive, who is tasked with serving as a role model on—and initial interpreter of—what the law requires. In a July 28th speech on Long Island, Trump made clear that he has no problem with officers roughing up suspects. “Please don’t be too nice” to arrestees, he urged the police in his audience, and instructed them to feel free to stop protecting a suspect’s head when placing them in a patrol car “if they just killed somebody,” prompting applause from some officers standing behind him. The White House later said that Trump was joking, but the remark rightly triggered a wave of rebuke from law-enforcement officials across the country and from the International Association of Chiefs of Police. Now, by pardoning Arpaio—shortly after a rally where he suggested that Arpaio was “convicted for doing his job”—Trump has committed an official act that serves to confirm his views on the permissibility of law enforcement’s use of excessive force. That act does not merely undermine the courts’ ability to serve as a check on police misconduct from the back end. It is a move to redefine what constitutes legitimate law enforcement from the front.

The fact Trump has chosen to undo the outcome of a contempt prosecution that was only recently and successfully pursued by his own Justice Department signals another rule-of-law boundary breached—that of Justice Department independence. For months, commentators have sounded the alarm about the White House’s improper communications with the Justice Department, particularly the F.B.I., in contravention of longstanding policies dating back to the Carter Administration. Those policies were put in place for the express purpose of insulating investigations and cases from political influence. Concerns peaked when the former F.B.I. director James Comey testified, under oath, that Trump had expressed the “hope” that the Bureau would drop its investigation into the former national-security adviser Michael Flynn, and when subsequent reports emerged that Trump had exerted similar pressure on other senior officials.

Yet, in pardoning Arpaio, Trump went a step further than anything alleged regarding Flynn: he publicly nullified the results the Department had labored to win. And, according to the Washington Post, he resorted to doing so specifically after asking Attorney General Jeff Sessions this spring if the government could drop the criminal case against Arpaio. On being informed this would be improper, Trump reportedly decided to wait it out, planning to grant a pardon in the event that Arpaio was convicted. On the one hand, this revelation offers some comfort to those concerned that the Justice Department might fold in the face of such pressure. On the other hand, from start to finish, the President’s conduct makes a mockery of the wall carefully maintained by every administration since President Jimmy Carter’s Attorney General, Griffin Bell, first described, in his watershed 1978 speech, the need “for the President to allow the Attorney General freedom from undue influence” in order “to inspire public confidence in the faithful execution of the laws.”

It is one thing to undermine the Justice Department’s prosecutorial function, which is carried out by a set of organs that are supposed to exist separate and apart from White House pressures. But Trump also reportedly went the additional step of ignoring the distinct role that the Justice Department plays in its advisory capacity to the White House. The Office of the Pardon Attorney—which serves, for pardon purposes, as a kind of specialized Office of Legal Counsel, that Justice Department entity tasked with providing the President and the executive branch authoritative legal advice on a wide array of matters—has been the President’s right hand on pardon and clemency decisions since 1891 (and the Attorney General has administered the pardon power since before the Civil War).

Trump is not the first President to go around the established pardon process to get the desired result, but it should be noted that the Justice Department played some role in even the Rich pardon: at the time, Deputy Attorney General Eric Holder told the White House he was “neutral, leaning towards favorable” on the pardon. Reports so far indicate that Trump did not consult the Justice Department at all. Even if these reports prove inaccurate, it would be astonishing if it turned out that a senior-level Justice Department official recommended a pardon for an individual whose conviction the Department’s own Public Integrity Section was on the verge of securing. Though Trump’s supporters correctly argue that Trump is not legally bound to consult anyone in granting a pardon, to assert this as a substantive defense of his conduct is to misunderstand the Constitution. James Madison himself described impeachment as the proper response to abuse of the pardon power. That is not because the power is by its own terms constrained, but because its true scope can only be understood in conjunction with the President’s obligations, as directly stated in Article II of the Constitution, to “take Care that the Laws be faithfully executed.” In furtherance of the President’s “take Care” obligations—a duty made harder, not easier, by the sweep of his power and sheer number of people and activities under his command—the executive branch has evolved a set of agencies, customs, and principles that give form to his exercise of authority. These internal mechanisms are not superfluous to the President’s adherence to the law but are a reflection of the executive branch’s legal commitments spanning administrations.

This speaks to the core problem with the Arpaio pardon, and the Trump Presidency. Like his first executive order banning travel from seven Muslim-majority countries, which was reportedly rolled out without the rigorous review normally conducted by the Justice Department, Trump’s pardon of Arpaio is an express repudiation of the many systems that exist to appropriately and lawfully channel the President’s power. Their destruction will be costly not only to the rule of law but to the President’s place in the constitutional firmament, as it may well prompt the courts and Congress, in the long run, to cast a skeptical eye on the deference long enjoyed by the President when it comes to core executive functions like enforcement of the law. The vastness of the President’s power does not protect Trump from being impeached for abuses like the Arpaio pardon. Instead, it is a testament to the opposite proposition, and his willingness to use that power as he pleases will not strengthen the executive branch; it will diminish it.

Since the start of the Trump Presidency, commentators have fallen back repeatedly on technical questions of legality to decide how seriously to take Trump’s extraordinary rejection of the most basic norms of public office. But his threatened, and now actual, abuse of the pardon power underscores the flaws of this approach. The Arpaio pardon is a constitutional milepost not because it provides us with any new evidence of Trump’s personal willingness to abuse Presidential power. Instead, it is a dangerous warning sign that neatly captures the many facets of Trump’s ongoing war on the apparatus designed to insure our government is one of laws—an apparatus that begins, and, in the case of a pardon, ends with the President.

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