A Bad Pardon

National Review Online

Monday, August 28, 2017

The announcement of the pardon of former Sheriff Joseph Arpaio on a Friday night — the time usually reserved for getting out bad news — suggests that some people at the White House might have been embarrassed by it. If so, they were correct.

We are mindful of the hypocrisy of the Left regarding abuse of the president’s constitutional pardon power. President Clinton put it on sale for the benefit of donors and cronies. President Obama used it to effectively rewrite Congress’s narcotics statutes, for the benefit of drug felons and in circumvention of his duty to execute the laws faithfully. Both commuted the sentences of anti-American terrorists from the FALN and the Weathermen. These were disgraceful acts.

But that past doesn’t make Trump’s pardon any less objectionable. Trump acted for the benefit of a political crony, just like Clinton. He did it — just like Clinton — outside the Justice Department’s pardon process. While presidents have the authority to go around DOJ, the regular process is in place to ensure that presidents make fully informed pardon decisions. To short-circuit the standard procedure is to consciously avoid facts that might show that clemency is unwarranted.

In this case, the facts are that Sheriff Arpaio repeatedly flouted court orders and detained aliens on suspicion of being in the United States illegally, which is not a crime under federal law (it’s a civil offense).

Even if one believes it should be a crime, Congress has not criminalized it. Even if, moreover, one believes that the states should have the sovereign authority to criminalize trespass by aliens in the country unlawfully, the federal courts have thwarted them. Law officers are bound to enforce the law as it exists, not the law as they would have it. Furthermore, if law officers believe court orders are incorrect, their remedy is to challenge them through these constitutional procedures, not to flout them. The rule of law depends on it.

It must be stressed that the president has the power to commute sentences while leaving convictions in place. If Trump believed that the 85-year-old Arpaio’s age, honorable military service, and long law-enforcement career militated in favor of clemency, he could have set aside any federal sentence imposed on the former sheriff. To the contrary, Trump’s issuance of a full pardon effectively endorses Arpaio’s misconduct.

Arpaio had not been sentenced; therefore, his conviction was not even final yet. As his defenders have maintained since the judge found him guilty, he has non-frivolous appellate claims, even if he was unlikely to prevail. The first is that he didn’t get a jury trial. The court denied him one because the contempt offense was tried as a misdemeanor, meaning he faced a maximum of six months’ imprisonment — a ruling urged and supported by the Justice Department after Trump took office. The second regards criminal intent, as Arpaio contends that he relied on the advice of counsel in disobeying court orders.

If the president had stayed his hand and let the legal process work, it is possible that there’d have been no need to consider a pardon. Instead, Trump’s pardon is so premature that Arpaio was not even eligible under Justice Department guidelines to petition for a pardon. Furthermore, if Arpaio was wrongfully convicted, as his lawyers and allies maintain, the judicial system has been denied the opportunity to reverse the result. While the pardon formally forgives the sheriff’s lawlessness, the legal proceeding to this point will remain (another) mark against him.

Arpaio is a hero to the populist Right, but his theatrical, inhumane imprisonment policies, ham-fisted immigration enforcement, and all-around witless showmanship had become so toxic that he got soundly thrashed in his latest reelection bid in a Trump-friendly county. No one serious about immigration restriction should want Arpaio to be the poster boy for the cause, but that is clearly what Trump considers him, and his pardon makes the point rather emphatically. Better than dumping this pardon on a Friday night would have been never granting it at all.