President Donald Trump’s pardon on Friday evening of ex-Maricopa County Sheriff Joe Arpaio took no one by surprise.
Trump had tipped his hand Tuesday at a rally in Phoenix, telling the crowd of supporters “I’ll make a prediction: I think he’s going to be just fine, OK?”
When the official act was announced three days later, critics reacted on Twitter and legal blogs with concerns that the president’s pardon undermines the rule of law, stokes racial tensions and signals to associates caught up in the Russia probe that Trump will pardon those who remain loyal.
Among those speaking out are prominent lawyers, former government officials in Republican and Democratic administrations, and lawmakers of both parties. The Arpaio pardon received mixed reactions from Arizona’s Republican delegation (see below).
The president’s power to pardon is vast. However, several aspects of Trump’s pardon of Arpaio are unconventional. The Justice Department’s pardon attorney does not seem to have been consulted. DOJ guidance, which says petitions should only be considered years after conviction, was not followed. (Arpaio faced up to six months in jail for criminal contempt—read the findings of fact here—but has not been sentenced.)
Additionally, there was no showing of remorse from Arpaio, generally a factor in issuing a pardon.
In legal circles, much of the disquiet focuses on the president’s use of the pardon power to override criminal sanctions imposed against a law enforcement figure for willfully defying a court order.
Here is some of what lawyers had to say:
Hilarie Bass, American Bar Association president: “Granting Arpaio an expedited pardon sends the wrong message to the public. The authority of the courts must be respected if our system is to work. Individual interpretations cannot be swapped for the rule of law. Pardoning a law enforcement officer who has disobeyed the courts and violated the rights of people he has sworn to protect undercuts judicial authority and the public’s faith in our legal system.” Read full statement here.
Sally Yates, former U.S. deputy attorney general:
With his pardon pen, POTUS reveals his own contempt for our Constitution, our courts, and our founding principles of equality and justice.
— Sally Yates (@SallyQYates) August 26, 2017
Preet Bharara, former U.S. Attorney for the Southern District of New York:
This pardon is contrary to DOJ guidelines, unsurprisingly. Pure politics. Wonder what the pardon attorney’s official recommendation was. https://t.co/jErRZiJnxy
— Preet Bharara (@PreetBharara) August 26, 2017
Jack Goldsmith, Harvard law professor and former Assistant Attorney General for the Office of Legal Counsel under President George W. Bush:
2/ But it shows, again, how much our constitutional structure assumes a minimally conscientious, responsible, ethical POTUS, which we lack.
— Jack Goldsmith (@jacklgoldsmith) August 26, 2017
John Dean, former Nixon White House counsel:
Pardoning Arpaio goes way beyond his being a racist, a bigot, and defying the law. It's an attack on the Federal Courts' enforcing the law.
— John Dean (@JohnWDean) August 26, 2017
Rick Jones, president of the National Association of Criminal Defense Lawyers: “NACDL is very troubled by this use of the executive power to grant mercy, for the very first time by President Trump, before the judicial process is completed, and where there has been no evidence of contrition or acknowledgement of wrongdoing. This pardon reinforces an extremely disturbing pattern of conduct by this President who, through his words and his deeds, has shown disdain for the co-equal Judicial Branch of government as well as the actual and potential victims of constitutional abuse. We are fast spiraling into a moment of constitutional crisis, and those of us who are required to stand behind the Constitution must not remain silent when the power of government is used to perpetuate injustice.”
Walter Shaub, former director U.S. Office of Government Ethics:
Pardon motives? I suspect: Court alt-right votes, test water for more pardons, encourage loyalty, signal Mueller targets (fear not/be quiet)
— Walter Shaub (@waltshaub) August 26, 2017
P.S. Ruckman Jr., political science professor and editor of the blog Pardon Power: “Hundreds of persons have applied for clemency and have waited for years, some for 10 or 15. Imagine how demoralized they must feel now. Now, more gasoline will be poured on the classic misconception that clemency is only for famous persons, rich people, political supporters, insiders, the ‘connected.’ It is, of course, a false narrative, but a powerful one. One that defames a wonderful check and balance and, in some instances, discourages politicians from doing anything.” Pardon Power.
Orin Kerr, former federal prosecutor and law professor at USC Gould School of Law:
Trump shows his love of the Constitution by pardoning a man who refused to stop violating it. https://t.co/BnwqPnZfka
— Orin Kerr (@OrinKerr) August 26, 2017
Martin Redish, professor of constitutional law at Northwestern University: “This is uncharted territory. Yes, on its face the Constitution’s pardon power would seem unlimited. And past presidents have used it with varying degrees of wisdom, at times in ways that would seem to clash with the courts’ ability to render justice. But the Arpaio case is different: The sheriff was convicted of violating constitutional rights, in defiance of a court order involving racial profiling. Should the president indicate that he does not think Mr. Arpaio should be punished for that, he would signal that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies.” The New York Times.
Republican Sen. John McCain of Arizona: “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 as Mr. Arpaio has shown no remorse for his actions.” Statement.
Republican Sen. Jeff Flake of Arizona:
Regarding the Arpaio pardon, I would have preferred that the President honor the judicial process and let it take its course.
— Jeff Flake (@JeffFlake) August 26, 2017
Republican Rep. Trent Frank of Arizona:
The president did the right thing — Joe Arpaio lived an honorable life serving our country, and he deserves an honorable retirement.
— Rep. Trent Franks (@RepTrentFranks) August 26, 2017