Bob Bauer, who was a White House Counsel to Obama, wrote a Lawfare post Thursday about a then-potential pardon for Arpaio.
Any president considering a pardon in the normal course would solicit and make publicly available the recommendation of the Department of Justice. The Department, however—and here we are speaking specifically of Trump’s Department—secured the very conviction for criminal contempt that would be the subject of the pardon. Now, a president can ignore the departmental recommendation: The power is his, of course, and not the Attorney General’s. But presidents are sensitive to the Department’s recommendations, and for good reason. The pardon power sits uneasily with the belief that ours is “a government of laws, not of men,” and the DOJ’s participation is one check on the abuse of this extraordinary authority. In answering the call for public accountability President Trump would have every incentive to involve and obtain the support of the Department. His failure to do so, or his proceeding over the Department’s objections, would ring a loud alarm.
What’s that deafening noise I hear?
The White House Counsel preparing the pardon papers would also need to labor hard, and would inevitably fail, to to bring this potential grant within the accepted norms for the grant of pardons. Among the more conventional considerations: the case is fresh, and with Arpaio’s lawyers readying the appeal of a decision issued in July, the president would be intervening in the middle of a legal proceeding yet to run its course. If Trump just jumps in and by executive fiat ends the matter, a pardon will have every appearance of being direct interference in the administration of justice. In his capacity as the Chief Executive, the President has already had exceptional difficulty grasping and respecting the independent and impartial operation of federal law enforcement. With this act, Mr. Trump dramatically escalates the assault on these limits.
He likes doing that. He thinks it’s cute.
Then there is the large and more basic question of the purpose behind a grant. It does make a difference why a president grants a pardon. It is an act for which he or she is accountable under the Constitution: As Justice Holmes stated almost a century ago in Biddle v. Perovich, the pardon power is “part of the constitutional scheme,” to be exercised in the advancement of the “public welfare.” Or as Alexander Hamilton argued it in Federalist No, 74, it is a “benign prerogative” in the interests of the “tranquility of the commonwealth.” Like all of a president’s actions, its use is subject to the overall commitments entailed in his oath of office.
I’m not clear on what that means, or what “accountable under the Constitution” means. I’ve seen other lawyers say the pardon power is absolute. If it’s absolute it can’t be subject to the overall commitments entailed in his oath of office or accountable under the Constitution. Maybe lawyers aren’t entirely clear on it either, because nobody has used it in such a defiant way before. (Although surely Ford’s pardon of Nixon must be a rival. I never did understand that.)
Hamilton assured his Federalist readers that the individual occupying the Office of the President could be trusted to act on this extraordinary authority with a “sense of responsibility” marked by “scrupulousness and caution,” “prudence and good sense,” and “circumspection.”
Good god, whatever gave him that idea?
When Trump asked, “Do people in this room like Sheriff Joe,” he was quite explicit about the very defined political audience for the pardon—the “people in this room.” He paid little heed to the seriousness of the matter in declaring that Sheriff Joe was “convicted for doing his job.” That, of course, was not the reason that Arpaio was convicted, and it is beneath the dignity of the country’s Chief Executive to yet again demean and ridicule a court in this fashion.
Very nearly everything Trump does is beneath the dignity of the country’s Chief Executive. He might as well be wearing a clown suit 24/7.
If the President does pardon Arpaio, he may do so in the belief that it will be all political gain and no cost. He will be wrong. An act of this kind cannot fail to affect Mueller and his team as they investigate obstruction of justice and evaluate evidence bearing on the President’s motives and respect for law. Trump will have added more telling detail to the picture prosecutors are piecing together of “how he operates.”. Congress may now or in the future also have occasion to conduct its own inquiry.
And while the president may well get away with the specific act of pardoning Arpaio, this action will not be without effect on future calls for impeachment. Unlike a pardon of himself, family members, or aides in the Russia matter, pardoning Arpaio would probably not result in the immediate demand for an impeachment inquiry. If, however, impeachment pressure increases, or a formal impeachment inquiry is launched on the basis of Russian “collusion,” obstruction, or on other grounds, an Arpaio pardon in the background will be highly damaging to the President’s position. It will immeasurably strengthen the hand of those arguing that Donald Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to be entrusted with the presidency.
I hope so. I hope the outcome will be that, as opposed to a lawless authoritarian immovably in power.
