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Trump Pardoned Arpaio. What Can the Law Do Now?

Arpaio at Trump rally

After teasing the public about it for days, on August 25 Donald Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was convicted of criminal contempt of court in July and was due for sentencing in October.

According to Trump, Joe was “convicted for doing his job.” Apparently, the President believes the job of an American sheriff includes running a self-described “concentration camp” where prisoners were abused and committed suicide at alarming rates, launching a hotline where people reported suspected undocumented immigrants based purely on the color of their skin, encouraging officers to follow Latinos around in their cars and pull them over for infractions as small as a cracked windshield in order to ask for their papers, and flagrantly disobeying a court order to stop racially profiling Latinos

The U.S. Constitution gives the President what seems to be unlimited power to pardon people. So many people are wondering if there is any legal recourse to this action.

As Trump would say, this is “unpresidented” territory. But there are plenty of arguments that Trump’s pardon goes against Department of Justice regulations, the Constitution, and certainly the intent of the Constitution’s framers.

According to the Department of Justice, longstanding regulations call for waiting at least five years after conviction before filing a pardon application. Arpaio was convicted less than four weeks ago. A Presidential pardon at this point is “intervening in the middle of a legal proceeding yet to run its course… [and has] every appearance of being direct interference in the administration of justice,” wrote Bob Bauer, a professor at New York University School of Law, in the Chicago Tribune.

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Again according to DOJ regulations, “In general, a pardon is granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence.” The convicted person should also exhibit “acceptance of responsibility, remorse, and atonement” and have “made restitution to its victims.” Arpaio, on the other hand, still claims he is innocent and brags about what he has done.

Presidents traditionally grant pardons at the end of their term, after a long vetting process involving the DOJ. “Any president considering a pardon in the normal course would solicit and make publicly available the recommendation of the Department of Justice… [because] the DOJ’s participation is one check on the abuse of this extraordinary authority,” writes Bauer.

Trump did not do so in this case, and it can be reasonably assumed that the DOJ would not approve of this pardon, since Arpaio’s criminal conviction was secured by the DOJ under the Trump presidency. 

Many people are comparing this pardon to the Chelsea Manning case. But President Obama did not pardon Manning; he shortened her “disproportionate[ly]” long 35-year sentence, after she had already served nearly seven years in confinement. And unlike Arpaio, Manning apologized in court to the United States and to the people she hurt.

Even graver than a violation of DOJ regulations is a trampling of the Constitution.

The president could even secretly promise a pardon to agents if they undertake illegal activity he desires. – constitutional law professor Martin H. Redish

The court’s only effective means of stopping the government from violating people’s constitutional rights  is through injunctions, such as the injunction it put on Arpaio and the MCSO to stop racially profiling Latinos.

“[I]njunctions have teeth only when they have the potential of a contempt conviction behind them,” wrote Martin H. Redish, a professor of constitutional law at Northwestern, in a New York Times op-ed. “But if the president signals to government agents that there exists the likelihood of a pardon when they violate a judicial injunction that blocks his policies, he can all too easily circumvent the only effective means of enforcing constitutional restrictions on his behavior. Indeed, the president could even secretly promise a pardon to agents if they undertake illegal activity he desires.”

Trump is sending a message that anyone who violates the Constitution and the court’s orders will get off scot-free – as long as that person’s illegal actions were in line with the President’s beliefs. It also sends a message that is eerily reminiscent of The Godfather : If you’re loyal to Trump and kiss up to him, the law does not apply to you.

“This,” Redish continues, “is surely not the result contemplated by those who drafted and ratified the Fifth Amendment [which grants due process in court], and surely not the result dictated by precepts of constitutional democracy.”

Andy J. Semotiuk, a U.S. and Canadian immigration lawyer, echoed this sentiment in a Forbes op-ed: “This case sets the dangerous precedent that the President will be the arbiter of what is right and what is wrong in America. Legally speaking this is not what the constitution intended.”

In the Federalist Papers, Alexander Hamilton wrote that the President’s right to pardon was a good and humane policy because the President would no doubt be a “man of prudence and good sense” whose position of power “would naturally inspire scrupulousness and caution” as well as a “sense of responsibility.” Alexander Hamilton is rolling in his grave.

Fortunately, legal experts are not backing down. 

“We will continue to fight Trump’s attempts to advance Arpaio’s failed legacy,” announced ACLU of Arizona’s executive director, Alessandra Soler.

And the national ACLU tweeted, “We’ll see you in court, @realDonaldTrump.” We look forward to the day.