Why does the pardon of Arpaio show contempt for the rule of law?

  • Much of the criticism of Trump's pardon of former Arizona Sheriff Joe Arpaio has centered on the idea that this shows a disrespect for the "rule of law". For instance, John McCain said (as reported in the LA Times):

    The president has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions.

    But couldn't that be said about practically any pardon? Theoretically, every prisoner was convicted of properly enacted laws and according to our accepted judicial processes.

    While I don't agree with this particular pardon, I don't see what makes it different from other pardons. In all cases, the President is essentially stating that he knows better than the courts and juries that convicted the individuals, or simply that he doesn't care what they said. Pardons are often done for political reasons, and that seems to be the likely justification for this one; it's very consistent with Trump's campaign promises regarding illegal immigration, since Arpaio was well known for being a fierce opponent of it. Pardoning Arpaio plays to Trump's base.

    It seems like this pardon is being singled out simply because so few politicians on either side of the aisle agree with it. But what does that have to do with the "rule of law"?

    And since the power to pardon is part of the Constitution, isn't it effectively included in the rule of law? How can exercising a legal power be a violation of the law?

    EDIT: I understand that many people think this pardon was inappropriate, and agree with them. My question is specifically about why "rule of law" is being mentioned in the arguments against it, since the law specifically allows it.

    For some days in the past months there was even a discussion if the president could pardon himself. Obviously this power has the potential to be somewhat misused. Linking to some sources of the criticism would have made the question even better IMHO.

    Context is important. The incident needs to be put in the context of the Trump presidency thus far--specifically the last few weeks and the issues with ties to white supremacy. Also note that you are asking about opinions. You can debate this both ways fairly easily.

    I think that asking "what are the stated motivations for *viewpoint X?* is okay @blip, and *not* opinion-based. It's not the same question as "Does Trump not care about the rule of law?". The difference is a bit subtle, but it's there. Unfortunately some people – included some of the answerers here – seem to be confused about that.

    @Carpetsmoker I don't entirely disagree...but it's right on that line. It's essentially asking about a debate...even if it's not asking *for* a debate. :)

    Would be helpful to have a clear understanding of what the "rule of law" means. The American Bar Association https://www.americanbar.org/content/dam/aba/migrated/publiced/features/Part1DialogueROL.authcheckdam.pdf makes it clear that there is no universally accepted understanding about the phrase.

    Not an answer but Joe Arpaio history of controversial (I would argue racist and demeaning) practices is long. From Tent City to Chain Gangs or Illegal Immigration Posses that guy preference for "medieval" methods is evident. Also the pardon came before the actual sentence (scheduled Oct. 5) and Trump did not consult with the Justice Department. This was rushed to say the least.

    Incidentally, I believe this is why in Germany the power to pardon rests not with the Chancellor (_Bundespräsident_), who heads the government, but with the President (_Bundespräsident_), who otherwise has a mostly representative role and little involvement with day-to-day politics and law making. In the USA the President fills both roles, so the risk of a conflict of interest is greater.

    Donald Trump has signed an immense amount of executive orders, which attempt to circumvent the legislative process (often failing because congress has to budget for them to be carried out). He's shown contempt for the US system of government literally from day one, by abusing a controversial power, intended to be used rarely. His use of pardons, controversially, to circumvent the legal system, should not be a surprise. It's showing exactly the same contempt for another branch of government.

    @AJFaraday And didn't he criticize Obama for his excessive use of executive orders to get around the obstruction in Congress?

    The law (i.e. the Constitution) specifically gives the President the power to pardon people. It's counterintuitive to say he has no respect for the rule of law. He's following the law *exactly*, whether you agree with it or not. ALL pardons are technically a show of contempt for the courts. That's what checks and balances do.

    @WesSayeed That's the point of my question, isn't it? Other pardons have not resulted in such a criticism, even by people who didn't agree with them.

    Exactly. I'm just responding to some of your critics.

    @sleske, I'm not sure how significant it is to your point, but you gave the same German title (_Bundespräsident_) for both positions that you mentioned.

    @JoshCaswell: Oops, thanks, a typo. Unfortunately I cannot edit my comment, but the Chancellor is called _Bundeskanzler_ in German. And no, I don't think it's significant for my point.

  • tim

    tim Correct answer

    4 years ago

    tl;dr: Arpaio was sentenced for violating a court order, which ordered him to stop violating the law. In this case, a presidential pardon takes away any recourse the judiciary has, thus circumventing the separation of powers and thus the rule of law.

    Few people claim that the pardon was illegal. What people mean by "rule of law" in this case is that it was against the unwritten, but well established, procedure of pardons and an attack against the separation of powers.

    Procedures and Reasons for Pardons

    Specifically, the pardon violated - not legally binding - procedures because:

    • Trump did not consult anyone at the Justice Department
    • Arpaio did not request a pardon
    • Arpaio was not sentenced yet

    Additionally, the pardon is generally applied when one or more of these points apply:

    • Facts of the case have changed
    • The individual shows regret
    • The individual served their sentence
    • The sentence is seen as too harsh or unjust (compared to how it was seen when issued)

    None of those is the case here. Arpaio is proud of his racist and criminal behavior, and wasn't sentenced yet, so nothing has changed since his sentencing.

    Because of this, the pardon is perceived not as righting a previous wrong, or as mercy for a person showing regret, but as going over a judge.

    Separation of Powers and the rule of law

    In many democracies, state powers are separated into Legislative, Executive, and Judicial powers.

    Rule of law specifically means:

    the legal principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.

    While the pardon itself may have been legal, Trump circumvented the checks the judiciary could exercise over the executive (of which Arpaio was a part of). The law that prevented Arpaio from his illegal activities can be considered bypassed; It wasn't the law that governed, but Arpaio. Trumps pardon of him - without any sign of guilt or wrongdoing - is a support of Arpaio's ignorance of the law, and thus in conflict with the principal of rule of law.

    Martin Redish shows in the NYT why this pardon is an attack on the existing process, the separation of power, and thus the rule of law:

    This is uncharted territory. Yes, on its face the Constitution’s pardon power would seem unlimited. [...] But the Arpaio case is different: The sheriff was convicted of violating constitutional rights, in defiance of a court order involving racial profiling. Should the president indicate that he does not think Mr. Arpaio should be punished for that, he would signal that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies.

    Many legal scholars argue that the only possible redress is impeachment — itself a politicized, drawn-out process. But there may be another route. If the pardon is challenged in court, we may discover that there are, in fact, limits to the president’s pardon power after all. [...]

    [I]f 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. [...]

    [I]f the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power.

    Noah Feldman argues the same on Bloomberg:

    This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution.

    It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society. It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy [...]

    But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.

    Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.

    An Arpaio pardon would express presidential contempt for the Constitution. [...] Fundamentally, pardoning Arpaio would also undermine the rule of law itself.

    Additional reasons for outrage and meaning for future investigations

    Most of the outrage is of course not (only) because of the contempt for the rule of law, but because this isn't the first time Trump has shown his support for racists and white supremacists. And even those that agree with Trumps endorsement of white supremacists might agree that Arpaio was not a very decent person by any definition.

    Paul Krugman argues along those lines in an opinion piece in the NYT. He also gives an overview over Arpaios conviction and how this pardon might affect future investigations (and thus again attack the rule of law):

    Joe Arpaio engaged in blatant racial discrimination. His officers systematically targeted Latinos, often arresting them on spurious charges and at least sometimes beating them up when they questioned those charges. [...]

    Once Latinos were arrested, bad things happened to them. Many were sent to Tent City, which Arpaio himself proudly called a “concentration camp,” [...]

    And when he received court orders to stop these practices, he simply ignored them, which led to his eventual conviction — after decades in office — for contempt of court [...]

    Arpaio is, of course, a white supremacist. [...]

    Trump’s motives are easy to understand. For one thing, Arpaio, with his racism and authoritarianism, really is his kind of guy. For another, the pardon is a signal to those who might be tempted to make deals with the special investigator as the Russia probe closes in on the White House: Don’t worry, I’ll protect you. [...]

    It's a shame I can upvote you only once. Excellent work, sir!

    IMO, you really should fix the first sentence. Arpaio was actually court-ordered to STOP enforcing the law which the people voted for, and he chose the people of Arizona over that one judge.

    @Jasmine That's just incorrect. But please feel free to open a separate question about that; it should be on-topic here (or alternatively at law.SE).

    -1 for the opining about support of racists and white supremacists. Ruined an otherwise outstanding answer. @Jasmine - Technically, he was ordered to stop enforcing a law that had been declared unconstitutional. The proper recourse for him was to appeal that ruling not ignore it.

    Your opening summary makes a tautology. A *"presidential pardon takes away any recourse the judiciary has, thus circumventing the separation of powers and thus the rule of law."* That's what a pardon does, by definition. Further, the right of the president to pardon is given by that same law you claim it circumvents! This makes no sense ... unless you redefine "rule of law", which you do almost immediately after the summary. The real rule of law is that Americans have a legal path to change presidential pardon powers. Until then, the question and this answer strain intellectual credibility.

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Content dated before 7/24/2021 11:53 AM