Trump pardon of Arpaio betrays the Constitution

September 3, 2017

President Donald Trump’s pardon of former Arizona Sheriff Joe Arpaio violates the Framers’ rationale for vesting the pardoning authority in the executive and exposes his disinterest in the principle of law and order. Worse, it encourages law enforcement officials to engage in further acts of racism and represents a gross abuse of power.

Trump’s decision to pardon Arpaio, who once ruled Maricopa County with indifference to constitutional constraints, is beyond constitutional challenge. The Pardon Clause, located in Article II, vests in the president broad, discretionary authority to grant pardons for all offenses against the nation, except in cases of impeachment. As a consequence, we rarely discuss presidential pardons as a matter of law. Rather, pardons are evaluated in light of the rationales, wisdom and judgment that define them. The Arpaio pardon is indefensible by any measurement.

In 2013, a federal judge in Arizona held that Sheriff Arpaio had violated the constitutional rights of Latinos by targeting them during traffic stops and raids. The court ordered him to cease his unconstitutional exercise in racial profiling. But Arpaio, through departmental planning and practice, implemented a program of sustained defiance of the court-imposed prohibition and, last spring, was found guilty of criminal contempt of court and sentenced to six months in jail.

The Framers of the Constitution, as Alexander Hamilton explained in Federalist No. 74, placed the pardon power in the presidency, largely to “correct miscarriages of justice.” There was no miscarriage of justice in the court’s finding that Arpaio had engaged in criminal contempt of court. As sheriff, Arpaio had sworn an oath to enforce the law--not as he sees it, or would like it to be--but as the court defines it. Arpaio’s willful disregard of the law, which included targeting of U.S. citizens of Latino descent, made him the ultimate law-maker, a self-conferred station which, if adopted by law enforcement officials across the nation, would mark an end to the rule of law.

President Trump’s grant of a pardon to Arpaio, an endorsement of the sheriff’s blatant trafficking in racism and defiance of a court order, reveals yet again his indifference to the conception of law and order. An authentic law-and-order president, at a minimum, would exhibit rigorous adherence to constitutional principles and statutory provisions, but after seven months in the presidency there is no evidence that he aspires to be that sort of chief executive.

While President Trump’s grant of clemency to Arpaio has thrilled his political base, there are genuine concerns throughout America about Trump’s willingness to weaponize the pardon power as a means of protecting aides and cronies who demonstrate their commitment to his agenda and, most important, their loyalty to him. Has Trump signaled law enforcement officials that they will be protected from judicial sanctions if they engage in racial profiling or otherwise implement his immigration agenda? Has he signaled White House aides—past and present—who are being subpoenaed by Special Counsel Robert Muller to produce documents and testimony to a grand jury, that he will use the pardoning power to protect them?

Several years ago, Arpaio, who joined Trump’s deceitful journey into the conspiracy of “birtherism,” dispatched one of his sheriffs—at taxpayer expense—to Hawaii, not a locale generally considered to be within the jurisdiction of Maricopa County, to examine President Barack Obama’s birth certificate.

Once installed in the Oval Office, Trump asked U.S. Attorney General Jeff Sessions if he would halt the legal proceedings against Arpaio. To his credit, Sessions replied that such an act would be inappropriate. Trump, according to White House aides, indicated that if he could not stop the justice department’s action again Arpaio that he would pardon and thus protect Arpaio.

We are reminded once more that the Constitution is mere parchment, that the maintenance of its integrity and principles depend on having good men and women at the helm.

David Adler is president of the Idaho Falls-based Alturas Institute, which promotes the Constitution and civic education. He has lectured nationally and internationally on the Constitution and presidential power. Adler is a former Idaho State University political science professor.