Below is my column in USA Today on the Arpaio pardon and its historical context. While I have been critical of the Arpaio pardon, the history of presidential pardons is quite checkered. Moreover, I agree with critics that the Justice Department made a major mistake in the timing of its prosecution of Arpaio shortly before the election. That does not change the fact that Arpaio was in flagrant violation of a court order and warranted the contempt conviction. I also disagree with New Jersey Christ Christie in aspects of the following statement:
“I think the pardon power is an extraordinary power for any executive, both the governor, and I’ve used it, and the president. My understanding has always been that one of the prerequisites you look for in giving a pardon is contrition for what you were convicted of. I didn’t see that in Sheriff Arpaio. And so, to me, one of the things that you need an acknowledgment of is an acknowledgment of guilt, first off, is required for pardon.”
While Christie can demand that from individuals as governor, it is certainly not a mandatory requirement for a presidential pardon. Contrition is a common element in presidential pardons in the review of petitions but it is not a threshold requirement. While a smaller subset of pardons, some pardon beneficiaries, like Richard Nixon, maintain that they were not guilty of any crime. Indeed, pardons can be used in cases where a president believes that someone was wrongly charged or convicted — as is the case with Trump’s rationale for the Arpaio pardon. Of course, in such case presidents normally give the courts an opportunity to review the conviction on appeal before executing a pardon. This is not one of those cases. Arpaio might have good-faith arguments in favor of his immigration arrests, but those arguments do not give him license to ignore a court order — which he did for 17 months.
Here is the column:
President Trump’s pardon of former Sheriff Joe Arpaio has been widely condemned across the political spectrum. Arpaio committed flagrant contempt of court in continuing patrols targeting immigrants in Arizona for 17 months. While Trump described Arpaio as a “worthy candidate” for a pardon, Trump’s action flouted both the purpose and process for presidential pardons.
Having said that, Arpaio pales in comparison to some past misuses of pardon authority. In a system of overlapping checks and balances, this is one of the few near absolute powers. Ironically, the provision has proven the fallacy of self-restraint by politicians in their use of unchecked authority. Left to their own devices and interests, presidents have repeatedly used this power for their personal political and familial interests.
There are a host of troubling elements to the Arpaio pardon. Trump reportedly bypassed his own Justice Department and pardon staff (which would have been unlikely to support clemency for Arpaio). Arpaio was not even sentenced and was looking at either no jail time or less than six months. Moreover, Arpaio remained defiant in the case and has not accepted responsibility.
The biggest problem with the pardon is the crime itself. The greatest cause for concern is the impact of this pardon on our principles underlying the rule of law. Our legal system depends on compliance with court orders ranging from search warrants to injunctions, particularly for law enforcement officials. Arpaio put himself above the law while claiming to enforce it.
If Trump felt Arpaio warranted clemency, he could have simply negated his sentencing. That is what George W. Bush did with Scooter Libby, a former adviser to Vice President Dick Cheney. Libby was convicted of perjury and obstruction for lying about his conversations with reporters about the identity of CIA operative Valerie Plame. Bush refused calls for a pardon as inappropriate and instead commuted Libby’s 30-month prison term but not his $250,000 fine. Conversely, Trump negated Arpaio’s entire conviction while proclaiming that he was merely doing his job.
Trump’s hints of a forthcoming pardon at his Phoenix rally last week drew a response illustrating its popularity with his base. If politics did triumph over principle, he would not be the first such president to yield to temptation:
- Thomas Jefferson was accused of using the power to pardon his political allies convicted under the Alien and Sedition Act (though, in fairness, Jefferson was opposed to the Act). He also pardoned Dr. Erick Bollman to allow Bollman to testify against his arch rival Aaron Burr in 1807 for treason. Bollman ultimately refused to accept the pardon and thus did not testify.
- President Warren Harding and his Attorney General Harry M. Daugherty were repeatedly accused of selling pardons. One such pardon was given to Ignacio Lupo. Known as “Lupo the Wolf,”Lupo was one of the top mobs enforcers and suspected in at least 60 murders. There was a mob war raging that impacted the lucrative bootlegging business that reported funneled money to Daughterty. Lupo’s release helped Giuseppe “Joe” Masseria win the war.
- Franklin Delano Roosevelt pardoned Conrad Mann, a close political associate of Kansas City boss Thomas Pendergast. Pendergast made a fortune off illegal alcohol, graft, and gambling. He is also credited with putting Harry Truman into office. Roosevelt pardoned Mann for running an illegal lottery.
- Harry Truman pardoned one of Louisiana’s most corrupt politicians George A. Caldwell, a Democrat. “Big George” Caldwell was notorious for skimming money off government projects, including the building fund for Louisiana State University. As State Superintendent of Construction, this public servant made $6000 annually but built one of the biggest mansions in Louisiana with air conditioning and sold gold bathroom fixtures. He was finally prosecuted for tax evasion and bribery but pardoned by Truman.
- Richard Nixon pardoned the infamous Teamster Union Leader Jimmy Hoffa in 1971 and Hoffa supported Nixon for reelection as president in 1972. The mob later reportedly murdered Hoffa to keep him from disclosing mob control of the union.
- Gerald Ford pardoned his predecessor Richard Nixon in what many felt was a political payback for his resignation. While there is no evidence of a quid pro quo, the pardon was denounced by many as sparing Nixon (and Republicans) from an impeachment anda trial.
- George H.W. Bush issued pardons for individuals involved with the Iran-Contra affair, including Secretary of Defense Caspar Weinberger. Both Ronald Reagan and Bush were viewed by some as directly or indirectly responsible for the criminal conspiracy. Various sources indicated that Reagan and/or Bush had prior knowledge of the illegal sale of missiles to Iran to secretly (and unlawfully) fund the guerilla war in Nicaragua.
- Bill Clinton was a serial abuser of pardon authority, using the power to benefit family, friends, and political donors. Clinton granted a pardon to his own brother Roger Clinton and his friend (and fellow Whitewater business partner) Susan McDougal. Most notoriously, he pardoned a man who is generally viewed as one of the least worthy recipients of a pardon in modern history: the fugitive financier Marc Rich. Rich was a major Democratic donor and entirely unrepentant for his tax evasion, racketeering, fraud, and illegal dealings with Iran.
Trump’s pardon of Arpaio looks almost papal in comparison to some of these pardons. None of that alters the fact that the Arpaio pardon was unwarranted and unwise. Justice Anthony Kennedy once complained that the pardon process had been “drained of its moral force.” If so, the Arpaio pardon is the dregs left at the bottom of a now depleted and despoiled process.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.