Law & the Courts

The Joe Arpaio Pardon Won’t Destroy Democracy

Donald Trump is joined onstage by Sheriff Joe Arpaio at a campaign rally in Marshalltown, Iowa, U.S. on January 26, 2016. (Photo: Brian Snyder/REUTERS)
The pass Trump gave the controversial Arizona sheriff was unseemly, but no worse than previous presidents’ nakedly political use of the same power.

If the best thing you can say for a presidential action is that it is no worse than things previous presidents have done that you condemned, perhaps it would be better not to have done it at all. That’s what many Republicans were thinking after President Trump issued a pardon to former Maricopa County sheriff Joe Arpaio on Friday. By the time Trump was confronted with a question about it at a Monday-afternoon press conference with the visiting president of Finland, his staff had already compiled a cheat sheet of the worst pardons granted by Presidents Bill Clinton and Barack Obama.

Trump sees granting grace to Arpaio, the longtime Phoenix-area lawman who was convicted of contempt of court last month, as something very different from Clinton’s and Obama’s pardons of former FALN terrorists with blood on their hands. He also sees it as nothing like Clinton’s sale of a pardon to Marc Rich, a man convicted of selling oil to Iran during the hostage crisis, or Obama’s freeing of Chelsea Manning, who committed a massive act of espionage. But the truth is, the Arpaio pardon is very much the same thing: a use of executive power for personal and political ends.

That’s why, although there is a strong case to be made that clearing Arpaio was not justified by the merits of his case, it is nonetheless nothing like the harbinger of imminent political apocalypse it was made out to be in the liberal press. Though we should be used to the mainstream media’s treating everything Trump does as a sign that tyranny is just around the corner, the effort to paint Arpaio’s pardon as proof that democracy and the rule of law are finished was particularly weak.

It’s true that giving a law-enforcement officer a free pass after he deliberately ignored court orders, violating prisoners’ constitutional rights and abusing them in the worst way, is appalling. But it’s not, as one New York Times op-ed put it, an attempt to circumvent the law entirely and to lay the groundwork for tyranny.

For all of his exaggerated notions of his own power, Trump was actually doing something quite prosaic here: playing to his base and rewarding a supporter. That’s why the comparison to the Clinton and Obama pardons is quite apt. Just as both Democrats saw pardoning those who committed terrorism in the name of independence for Puerto Rico as a reward to Hispanic voters, the gesture toward Arpaio is a reward to Trump voters, not a blueprint for a constitutional coup. The same applies to Richard Nixon’s pardoning of Teamster boss Jimmy Hoffa, who proved useful to his reelection before disappearing without a trace.

As he’s shown us in the last week, Trump is obsessed with keeping his base of loyal supporters happy. He may not be anywhere close to building a border wall, let alone making Mexico pay for it. But pardoning Arpaio is a way of reminding his voters that he hasn’t forgotten them. And rewarding a fervent supporter like Arpaio, who campaigned hard for Trump, is also very much in character for the president.

Is it a sign that he will pardon other supporters if the Russia probe led by Robert Mueller or other investigations places friends or family in jeopardy? Maybe. But, perhaps Democrats have forgotten that Bill Clinton pardoned his brother Roger after a conviction on drug charges.

The point is that no matter how harshly you paint the Arpaio pardon, there are plenty of precedents for it.

The point is that no matter how harshly you paint the Arpaio pardon, there are plenty of precedents for it. Almost everything that you can say against Trump here could easily have been said about so many other pardons, especially those granted by Clinton and Obama on drug and terror charges. Arpaio is as unrepentant as Oscar Lopez, a man responsible for dozens of terror bombings who refused to apologize or even renounce violence in exchange for his freedom when Obama granted it.

None of these comparisons make Trump’s action defensible. But they do make it harder to argue that what he’s done here is uniquely awful. If you think Trump undermined the rule of law for Arpaio and you never complained about Clinton’s and Obama’s similar abuses of the same power, then you’re in no position to howl in outrage here. As he has consistently done during his time in office, Trump turned both Republicans and Democrats into hypocrites: This is exactly the kind of thing his fans would have screamed bloody murder about had Obama done it, and exactly the kind of thing Democrats have historically excused when one of their own does it.

If anything, it makes those rare presidents who declined to use their pardon power in such a brazen manner all the more remarkable. George W. Bush’s refusal to pardon Lewis “Scooter” Libby after his conviction on what most of his supporters considered a bogus perjury charge embittered many of his supporters, and fractured his relationship with Vice President Dick Cheney. Libby deserved a pardon. But Bush, ever the Boy Scout, took his powers so seriously that he refused to do anything that could make it appear as if he was rewarding a loyalist.

Will Trump’s actions encourage others to violate the rights of prisoners or otherwise exceed their power as Arpaio routinely did while serving as sheriff? That’s a fair question. But, despite the egregious nature of his conduct, let’s also not pretend that voiding the conviction of an octogenarian who would probably never have served a day in jail will encourage others to follow in his footsteps. That’s especially true when you consider that we probably know more about Arpaio’s offenses now that he’s been pardoned than we did when he was campaigning for Trump last year. Any sheriff who would mimic him is probably going to be in even more trouble than he was.

The truth remains that for all of his unorthodox and even appalling behavior, Trump often acts like the most ordinary of politicians and presidents. Many of those who feared the worst after he was elected will continue to search for proof that their nightmares about Weimar Germany are being realized. While Trump’s troubling statements about Charlottesville, his attitude toward Russia, his dysfunctional approach to government, and now this pardon can be viewed as justification for refusing to support him, they won’t constitute proof that democracy is in danger so long as he continues to be thwarted by Congress and a free press continues to flay him relentlessly. Not every bad thing done by the president is a sign of fascism on the march.

Trump’s pardon may disgust us, but it brings us no closer to the apocalypse than those of his predecessors.


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