Friday, 25 August 2017

Pardoning the unpardonable

While much of North America is worried about the impending landfall of a potentially catastrophic hurricane in Texas, the US president has quietly pardoned the Arizona Sheriff recently convicted of racial profiling and refusing to obey a federal court’s injunction against continuing such practices.  Trump’s pardoning of Joe Arpaio may seem like a rather minor issue compared to the litany of major issues that have bedeviled this president, or indeed the impending disaster facing South East Texas.  I don’t want to diminish those other issues, but I want to highlight why this pardon is also a very big deal.  

Trump has recently mused publicly about the extent of his pardon powers.  And the Arpaio pardon his may well be the trial run of a string of pre-emptive pardons.  But even if it isn’t, the suggestion that Arpaio merited a pardon, as he hinted at his Phoenix political rally with the phrase that Arpaio had been “convicted for doing his job” is indicative of the contempt Trump holds for the rule of law and to his willingness to use the Presidency’s judicial privileges for crass political gain.

Normally, a president considering a pardon solicits and make publicly available the recommendation of the Department of Justice.  However, in this case that is unlikely to have happened since it was Trump’s own Department of Justice that secured the very conviction for criminal contempt that is the subject of the pardon.  A president can ignore a DOJ recommendation, but the DOJ’s participation is one check on the abuse of this extraordinary power in the hands of a president.  And even Attorney General Sessions was hardly likely to recommend a pardon for a law enforcement officer convicted of willfully and openly flouting a federal court order, prosecuted by his own department.

Moreover, this case is still active with Arpaio’s lawyers preparing an appeal of a decision that was only issued this past July.  Normally (and this pardon just goes to underline how far from ‘normal’ the US has travelled in the past 7 months), this would be a strong reason for a pardon to be thought entirely premature: the president is literally intervening in the middle of an ongoing legal proceeding.  Thus the pardon circumvents normal judicial process and has the appearance of being (and substantively is) a direct interference in the regular administration of justice.  Trump has already shown himself to have difficulty grasping and respecting the independent and impartial operation of federal law enforcement.  With this act, Trump has dramatically escalated the assault on these limits.

Trump is pardoning a political ally who quite deliberately flouted the law and did so as a law enforcement officer.  It places Trump, again, on the side of bigotry and racism. Trump has already made political spectacle of Arpaio in order to placate some of his restive critics: at his Phoenix political rally he asked, “Do people in this room like Sheriff Joe,” showing explicitly the very defined political audience for the pardon.  Perhaps Trump thought that pardoning Arpaio would bring political gain without cost.  It is true that this pardon cannot be stopped and will please the Trumpite base.  But it will also not escape the attention of Mueller and his team as they investigate obstruction of justice and evaluate evidence bearing on Trump’s motives and lack of respect for law.  

Unlike a pardon of himself, family members, or aides in the Russian investigation, pardoning Arpaio will probably not result in a demand for an impeachment inquiry.  But as impeachment pressure increases in the future (as they will), the Arpaio pardon in the background will be highly damaging to the Trump’s position.  Ultimately, it will strengthen the arguments of those who have long claimed Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to remain the president.