Lots of People Deserve Pardons and None of Them Are Named Joe Arpaio

An expert told us that however you feel about the former Arizona sheriff, pardoning him is a historically strange move, and not a healthy use of presidential power.
August 25, 2017, 7:06pm
Joe Arpaio campaigning with then-candidate Donald Trump in Iowa last year. (Photo by Scott Olson/Getty Images)

Donald Trump has made no secret of the fact that he wants to pardon Joe Arpaio, the notorious former sheriff of Maricopa Country, Arizona. Arpaio, who was convicted last month of misdemeanor contempt of court for disobeying a judge's order to stop racial profiling, is still awaiting sentencing. But the 85-year-old may never see the inside of a cell—or probation office—because the White House has reportedly already drawn up the documents required to bail him out. Meanwhile, Trump is publicly teasing that a pardon is on its way, saying things like "I am seriously considering" it and "I think he's going to be just fine."


Naturally, Trump's disciples aren't exactly upset by the idea. #PardonSheriffJoe is a real hashtag, and a healthy chunk of conservatives seem to believe Arpaio's unlawful targeting of Latinos was actually an example of "standing up to the left to protect America"—that the lawman was just "doing his job." Considering the Maricopa County Sheriff's Department's discriminatory behavior under Arpaio had real victims—American citizens and undocumented people alike—praising Arpaio as some kind of good guy is revisionist history.

But this is shaping up to be a strange scenario no matter where you stand on immigration or policing in America. It would be the first pardon in Trump's young presidency, giving him a long way to go if he ever plans on catching up to Obama at 1,927 uses of clemency power. Perhaps more important, pardoning Arpaio would mark Trump's latest questionable use of presidential power, given he and the convict seem to share views on immigrants and deportation. Constitutional law scholar Martin Redish wrote in the New York Times that the political nature of the pardon could make this a kind of "weaponized pardon power," allowing Trump to "circumvent judicial protections of constitutional rights." In other words, there's a real case to be made that this isn't just Trump bailing out a guy he thinks got a rough deal, but a broader power grab that diminishes the rule of law.

To find out just how weird saving Arpaio would be in the context of America's long history of shady pardons, I talked to P.S. Ruckman, Jr., a political science professor at Rock Valley College Northern Illinois University. Also the editor of the pardon blog Pardon Power, Ruckman told me not to worry too much about Trump using Arpaio to expand his own power, since all he seems to be seizing is the national spotlight. Still, he seemed downright queasy about the prospect of Trump giving this dude a pardon.

VICE: As a rule, is the president's reason for issuing a pardon of any legal consequence?
P.S. Ruckman, Jr.: Every now and then when people are talking about reforming pardon power, they suggest that the president should have to state the reason why they're bringing the pardon. Because presidents don't have to, and most of the time they don't. But even if you had that requirement, you still would never know what the true reasons are, and if the president gave eight reasons, there's no way to know how to weigh which ones are more important than others.

When you pardon someone who's a member of your own political party, is that political? How close do you have to be to them? What if you pardon a Cabinet member? There are all kinds of degrees, no doubt.


Have there been overtly political pardons—to continue using this term—in the past?
When you try to identify political pardons, you run into the problem of how you define what's political. But Thomas Jefferson was the first person to do this thing as far as I'm concerned. The first pardons he granted were to people who were still in jail for violating the alien sedition laws, and Jefferson opposed those [in the first place]. And he promised pardons for such people—that was a campaign promise. And one of them was supported by Jefferson financially. That's pretty direct, and political in any sense of the language.

A New York Times op-ed made Trump pardoning Arpaio sound pretty scary and possibly illegal. Could it signal that Trump is going to use pardons to seize extra power?
It certainly doesn't signal some kind of serious, systematic interest in pardons. And whether or not it goes so far as to send a signal, like a shot over the bow, to say, In the future, I'm doing this! That might be pushing it a little bit. I don't know if I could read that much into it. Even though [Arpaio was convicted of contempt of court], and even though this would be executive versus judicial, I wouldn't read larger implications into it for Cabinet members, and the Russia probe, and all that kind of stuff.

It seems weird that the president is being so upfront about his intentions here. Don't pardons usually just come out of the blue?
Trump's talked about him. He's mentioned him by name. If he didn't pardon him at this point, it would almost be cruel and unusual. I don't think I've ever heard of any pardon that was telegraphed—for an individual—in advance. Jimmy Carter, for instance—one of his campaign promises was to grant amnesty to draft dodgers, but that's different from saying, "I'm going to pardon this individual" or "I'm seriously considering it." That's unusual stuff in my mind, and in the history of pardons, I'm hard-pressed to think of an example where a president telegraphed it like that.


Wait, so how do you feel about this use of pardon power?
It's so maddening to me, because he hasn't pardoned anyone to this point. Yet, there are people that have had applications in, who have been waiting for ten or 15 years. And if he pardons Arpaio, it's gotta be just so demoralizing for those people. And it feeds the misperception—and it is a misperception—that the only people who get pardoned are people who are rich and famous, or connected, and average persons don't have a chance. It feeds that misperception. And to me that might be the most egregious part of the whole thing.

What would be a better example of a pardon, or at least something emblematic of the way you'd like to see them used?
The typical pardon recipient, no one's ever heard of, and no one ever will hear of them. They committed a minor, nonviolent crime years—if not decades—ago. They've been a law abiding citizen. They've passed the FBI check, and all that stuff. And all the pardon does is restore their rights. And there's no political risk involved. There's no Willie Horton effect. For the garden variety average Joe, most of the time, that's the way it happens, and that's the way it should happen. What I'm telling you is, Trump could be draining hundreds of those a month. Hundreds of them. And that he's done nothing up till this point, and the first thing he would do is ask for this guy, is just—if I had an application in, I would be very demoralized seeing something like that.

Could these people somehow take advantage of the fact that Arpaio's pardon is in the news to draw attention to their cases?
There are two schools of thought. One is if you try to draw publicity to yourself, you get backlash from [the Department of Justice] because they're so sensitive and you're doomed. The other is: Raise as much Cain as you can, and things will pay off. Most of the people I hear from, they don't really want publicity surrounding their cases. Unfortunately, it kind of highlights how tragic it is that Obama didn't change anything institutionally. He left the pardon process kind of like he found it. Those of us who follow this were hoping he would reform it institutionally, but he didn't. So now we're right where we were, which wasn't very good, pre-Obama. And certainly pardoning Arpaio isn't going to be some kind of flag of hope that clemency is going to re-emerge as a relevant part of presidential decision-making like it has been for most of American history.

So if I hear you right, it's not a power grab, and it's not really a teachable moment either. Is that about right?
It looks more like a stunt, frankly, than it does anything else. And of course, that's Trump.

This conversation was lightly edited for length and clarity.

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