Update: President Trump has pardoned Arpaio, in an announcement made Friday evening as Category-4 Hurricane Harvey made landfall in Texas.
The presidential pardon power is broad, but it is also controversial and subject to close scrutiny. Any move by President Trump to pardon ex-Sheriff Joe Arpaio will almost certainly provoke legislative responses to a presidency that routinely breaks established political and even constitutional norms.
Asked about a pardon on Thursday – two days after Trump hinted that he would pardon Arpaio in his campaign rally in Phoenix – White House press secretary Sarah Huckabee Sanders said, “I would imagine they go through the thorough and standard process, and when we have an announcement on what that decision is after that’s completed, we’ll let you know.”
Meanwhile, CNN is reporting that the necessary paperwork has already been drawn up to pardon Arpaio.
The former sheriff of Maricopa County, Arizona, Arpaio was convicted of felony contempt of court after refusing to obey a federal court order to stop racially profiling Hispanics for immigration enforcement.
The case hinged partly on racial discrimination, but also on the fact that as a state law enforcement officer, Arpaio and his deputies did not have constitutional authority to enforce immigration laws.
Arpaio is not apologetic. His unlawful tactics included traffic stops and even arrests based on little more than physical appearance, or the ability to speak Spanish.
When an injunction against these tactics was issued in a federal civil rights lawsuit, Arpaio brazenly and openly violated it, even bragging about it. This resulted in a prosecution for contempt, and a conviction that came down after his defeat in the 2016 election.
Indeed, Arpaio once boasted and built a reputation on his harsh treatment of prisoners, including forcing them to wear pink underwear and housing inmates in a “tent city” without air conditioning in the Arizona desert.
The punishment he faces for his own flagrant lawbreaking is relatively minor: A maximum of six months in prison. His sentencing will not be until October, so – with a pardon – it’s possible the 85-year-old will not be sentenced to any time at all.
Donald Trump versus the rule of law
Now Donald Trump wants to upset the rule of law. His presidential campaign was prominently and early-endorsed by the so-called “America’s Toughest Sheriff.”
Because the president’s pardon power is nearly unlimited, extending to all federal criminal cases, it’s not in serious dispute that Trump could pardon Arpaio.
But it would be a severe break from the norm. There exists an Office of the Pardon Attorney that normally handles requests, and which follows strict guidelines. Through this channel, requests are only considered if the person has completed their sentence at least five years prior.
Importantly, they must avoid any hint of denying their own guilt or wrongdoing. Arpaio emphatically denies that he did anything wrong.
The judiciary will not be pleased
More importantly than the obvious political favoritism is the nature of Arpaio’s conviction for contempt. Trump appears to be directly threatening the federal judiciary by using his pardon power to undermine the core of their authority to decide actual cases and controversies according to the law.
Contempt of court is the potential charge that underscores the mandatory nature of court orders, particularly orders issued to government officials. Pardoning Arpaio would represent a direct attack on the ability of federal courts to protect an individual’s constitutional rights.
By using the pardon power in manner that defies our constitutional structure, Trump could also be setting the stage for pardoning key aides and family members in the crosshairs of Robert Mueller’s special counsel investigation.
Some wisdom from the states
Over the years, many states have dealt with governors abusing their similar powers of clemency, as Trump appears primed to do.
States have often passed state constitutional amendments to require pardons and commutations to go through a board or commission, or to limit the power by excluding cases of political corruption by officeholders.
Congress may need to consider putting forth such a constitutional amendment. But there is a more urgent task. Congress would need to consider whether, if Trump were to pardon Arpaio, he has crossed the line and committed an impeachable offense.
(Photo of Donald Trump campaigning in Iowa in January 2016 with then-Sheriff Joe Arpaio of Maricopa County, Arizona, by Scott Olson/Getty Images.)