Cross-posted on the New York Daily News
With Donald Trump, it’s important to separate the outlandish from the outrageous.
His pardon of former Sheriff Joe Arpaio of Maricopa County, Ariz., is unpardonable. In many ways, it’s worse than it looks.
On its merits, the pardon rebukes equal justice and the rule of law.
Arpaio is a notorious figure. He relentlessly pursued Latinos for years. The Sheriff even set up outdoor detention facilities that he bragged were “concentration camps.”
He also dwelled on the racist conspiracy theory fringe. President Barack Obama’s birth certificate, he once announced, was a “computer-generated forgery.”
In 2011 a federal court ordered Arpaio to stop detaining people just because he suspected they were not citizens, a policy that plainly profiled and targeted Latinos. He routinely violated that court order. So he was convicted of criminal contempt of court earlier this year.
In his frenzied rally in Phoenix last week, Trump hinted broadly he might let Arpaio off the hook. Even so, he waited to act until the news would be drowned out by the roar of Hurricane Harvey.
To be sure, Trump does have a legal right to issue a pardon. The Constitution declares the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” But it still rings loud alarm bells, for a few reasons.
First, the crime. This was not mercy for some low level drug offender, say, who had served too much time. The President pardoned a public official who was found to have violated a court order that upheld the constitutional rights of minorities.
Once it was more common for presidents to issue pardons in contempt of court cases. A 1925 Supreme Court case even upheld the practice. But in recent decades, it has become seen to be a rebuke to the power and independence of the federal courts.
We’ve long worried Trump might trample judicial independence. Recall that last year, he loudly decried a federal judge in his own fraud case because the Indiana-born jurist was “Mexican.”
But so far, as President, Trump’s attacks on the courts were mostly just blustery tweets and words. He followed judicial rulings. Not this time. He has effectively stepped into a court case and said, “just ignore that pesky judge — you’re free to go.”
Chief executives long have backed the power of federal courts to uphold the U.S. Constitution. Think of Trump’s Republican predecessor Dwight Eisenhower sending in troops to ensure that Little Rock, Ark., followed a school desegregation order. Ike would spin in his grave.
Second, the process. There was no review by the Justice Department. No recommendation for a pardon. It is hard to believe that the White House counsel signed off.
This undermines years of procedures followed by presidents of both parties. And it opens the way to wide abuse of the pardon power.
Recall that President Bill Clinton’s pardon of fugitive financier Marc Rich in 2000 led to howls of protest and years of investigation. (I was a former senior Clinton aide, but I thought that pardon was a big mistake. But even there, the acting Attorney General gave the president the green light.)
If Republicans stay silent now, they will give hypocrisy a bad name.
There’s a third reason this is alarming: it sends a semaphore signal to others. Abusive law enforcement officials will take note. So will aides and allies enmeshed in independent counsel Robert Mueller’s investigation of Russia’s interference in the 2016 election.
It shows that Trump might recklessly use the pardon power as a get-out-of-jail card for his friends and supporters. Just yesterday, word came of new subpoenas in the Russia probe. The audience for this pardon likely included people like Paul Manafort and Mike Flynn, former top aides facing pressure.
Just hold tight and keep your mouth shut, the message seems to be, and I’ll take care of you. That’s something we might expect from a crime boss or a tinpot strongman in some other country. It’s not something we should ever want to hear from the Oval Office.
What can be done? Not much, likely, right away. Congress should consider writing into law the procedures to ensure that the pardon power is not abused, and to make sure the Justice Department plays its proper role.
There may be even bigger consequences. During the ratification of the Constitution, James Madison explained that abuse of the pardon power could be grounds for impeachment.
In the Watergate scandal, one of the counts of obstruction of justice being brought against Richard Nixon was that he dangled clemency before one of the conspirators in an effort to buy his silence. That was to save Nixon’s skin, not just to pay off a political debt.
If Trump acts to pardon his allies in the Russia probe, calls for impeachment would grow to hurricane strength.
For now, we can raise our voices. Arizona’s Republican Sen. John McCain had it right last night: this pardon of a lawless lawman “undermines [TRUMP’S] claim of respect for the rule of law.”