To nobody’s surprise, I hope, President Trump pardoned the former Maricopa County, Arizona sheriff, a hero to many conservatives and anti-illegal immigration proponents (there is no ethical justification for not being anti-illegal immigration), who was facing up to 18 months in jail for criminal contempt of court, for defying a judge who had ordered him to stop profiling Hispanics.
As I wrote earlier, the President had no good ethical options in this situation. It was a binary choice, and whichever choice he made would be arguably unethical in one respect or another. Let me repeat what I wrote about this question just two days ago, before the President acted:
- Arpaio did defy a judicial order. Should a law enforcement official be treated especially harshly when he does this?
- The judicial order related to Arpaio’s practice of assuming that individuals of Hispanic descent were more likely to be violating the immigration laws in his jurisdiction than other citizens. Since his jurisdiction was rife with Hispanic illegals, was this an unreasonable assumption on his part? No. Was it still discriminatory? Sure. Is the balance between profiling, which in such situations is a valuable law-enforcement tool, and the importance of equal treatment under the law a difficult one legally and ethically? Yes. Does a sheriff have the right and authority to ignore the way this balance is decided one legal authorities define it?
- Is the determination of this balance often polluted by ideological biases, in this case, against enforcement of immigration laws?
- Do Donald Trump, and his supporters, and those Americans who may not be his supporters but who agree that allowing foreign citizens to breach our borders at will without legal penalties is certifiably insane, believe that Arpaio’s position on illegal immigration is essentially correct and just?
- Nonetheless, did his ham-handed methods give ammunition to open-borders, pro-illegal immigration, race-baiting activists like the one who told the New York Times,
“Trump is delivering a slap in the face to dignified, hard-working people whose lives were ripped apart by Arpaio. Arpaio belongs in jail, getting a taste of his own medicine. Trump wants to put Arpaio above the law, showing they are both about white supremacy.”
- Is sending Arpaio to jail a political imprisonment?
Yes, although he made it easy to justify on non-political grounds.
- Are political prisoners the ideal objects of Presidential pardons?
- Would pardoning him send dangerous messages (it’s OK to violate judicial orders you think are wrong; the ends justifies the means; Presidents should meddle in local law enforcement, “extremism in defense of liberty is no vice”) as well as defensible ones ( judges and elected official enabling illegal immigration are a threat to the rule of law; Joe is an old man with a long record of public service who deserves mercy even though he was wrong…)
- Will such a pardon, especially as the news media is again spinning to make the case that Trump is sympathetic with xenophobes and white nationalists, further inflame an overly emotional debate that needs to be calmed, not exacerbated?
- Is the most responsible course for Trump to stay out of this mess?
Of course not.
Sure enough, Democrats, Trump-haters like Senator John McCain and my echo-chamber Facebook friends are denouncing the pardon as if the President had loosed Hannibal Lector on the world. In doing so, they really look ridiculous, and might as well be wearing “I hate Donald Trump and will scream bloody murder no matter what he does” in neon on their heads. Especially for Democrats, who have argued that non-violent criminals shouldn’t be imprisoned at all when they are young and black, the argument that an 85 year old man’s under-two year maximum sentence is an outrageous object of Presidential mercy and grace—that’s what a pardon is, you know–is the height of partisan hypocrisy.
The fact that Arpaio is 85 alone justifies a pardon by the standards Presidents have used since the beginning of the office. That his sentence is relatively short—many, many prisoners with far longer sentences have been pardoned by Trump’s predecessors–makes the pardon, if ill-considered, also de minimus, especially since there is no chance, literally none, that the old man, now out of office and retired, will have an opportunity to repeat the crime he was convicted of committing. A pardon is an act of grace by which an offender is released from the consequences of his offense, according to the U.S. Justice Department’s website. It does not say that the offender was not guilty, or that the law that was violated can be breached at will. In 2013, President Obama pardoned Willie Shaw Jr., who was sentenced in August 1974 to 15 years in prison for armed bank robbery. Armed bank robbery is a lot more serious an offense than criminal contempt, but nobody argued that Obama’s pardon “demonstrates flagrant disregard for the rule of law in this country,” not even the most virulent anti-Obama Republicans. But that’s what Senator Diane Feinstein said Trump’s pardon of Arpaio was:
“Sheriff Joe Arpaio should not have been pardoned. He brazenly denied a federal judge’s court order to stop racial profiling and continued to do so until being convicted of criminal contempt. A pardon for that conduct demonstrates flagrant disregard for the rule of law in this country.”
By that a standard, any pardon is an insult to the rule of law. Does Feinstein endorse the brain-dead view of her fellow California Senator, Kamala Harris, who seemed to argue that criminals shouldn’t be pardoned? I suspect the standard they both embrace is that no conservative law enforcement official should even be pardoned for being over-zealous in enforcing a law that their party disgracefully has tried to have enforced as infrequently as possible.
This is the real hypocrisy of the critics of Trump’s pardon. Feinstein’s state is full of sanctuary cities that intentionally undermine and defy the rule of law, without a peep of protest from its two Democratic Senators. They want Arpaio to be immune from Presidential mercy, unlike the 534 draft- dodgers pardoned by Jimmy Carter, tax fugitive Marc Rich, pardoned by Bill Clinton afters ex-wife made large campaign contributions and donations to the Clinton Presidential Library, gangster union leader Jimmy Hoffa, and all the Confederate citizens and soldiers who took up arms against the United States. They want him to be metaphorically hung up by his heels to appease their open-border, pr0-illegal immigration base, making the fervor to punish him purely political, and having little to do with respect for the rule of law, which their own position on illegal immigration proves that they don’t respect themselves.
Let me be clear. This isn’t a Rationalization #22 “it isn’t the worst thing” defense of the pardon. It is a “the attacks on this pardon are wildly disproportionate to its reality, and thus transparent political theater” indictment of the pardon’s critics. Almost every pardon can be called a rejection of the “rule of law,” if you don’t understand what the pardon power is, and politicians who have been undermining respect for the very laws that Arpaio went over-board enforcing are the last people on earth who should make that argument. They are ridiculous in their hypocrisy.
Joe Arpaio was an arrogant, grandstanding bully and thug, and unworthy of his badge. I wouldn’t have pardoned him despite his age, but there were some good reasons for Trump to do so. It was almost worth doing just to prompt Trump’s foes and pro illegal immigration hypocrites into embarrassing themselves.
The larger ethical problem with this pardon is the one focused on by P.S. Ruckman on his Pardon Power Blog. He is correctly troubled by the fact that the usual process for Presidential pardons was not followed (Trump does not even have a pardon attorney on board yet), and that for a political ally like Arpaio to be the President’s first pardon (despite the fact that Obama didn’t pardon his first until well into his second year in office), sends a corrosive message:
Hundreds of persons have applied for clemency and have waited for years, some for 10 or 15. Imagine how demoralized they must feel now. Now, more gasoline will be poured on the classic misconception that clemency is only for famous persons, rich people, political supporters, insiders, the “connected.” It is, of course, a false narrative, but a powerful one. One that defames a wonderful check and balance and, in some instances, discourages politicians from doing anything. They err on the side of caution (they think) by showing mercy to no one, or to as few as possible.