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August 30, 2017

More context for contemplating Prez Trump's pardon of Joe Arpaio

Yesterday I noticed two interesting pieces providing some context for Prez Trump's decision last week to make his first use of the clemency power a pardon for Joe Arpaio (basics here).  Here are their headlines, links and leads:

From CNN here, "This chart shows why Trump's pardon of Arpaio was so unusual":

It was an atypical pardon from an atypical president.  When President Donald Trump granted his very first pardon to Arizonan former sheriff Joe Arpaio, he bucked process and precedent by circumventing the Department of Justice's unit dedicated to making recommendations on such requests.  But he also bucked decades of precedent for how recent pardons have nearly always been granted: a majority have come in the last year of a president's term, they usually come in groups of a dozen or more and they cancel convictions averaging more than two decades old.

Trump's pardon of Arpaio marks one of the earliest pardons in a president's term and one of the only pardons granted alone, according to a CNN analysis of Department of Justice data ranging back nearly three decades. And we turned that data into a chart that shows how, historically, this pardon sticks out in all three major areas: numbers of years into a president's term, number of pardons issued at once and time since the conviction or sentencing.

From FiveThirtyEight here, "The Arpaio Pardon Has Plenty Of Precedents … That Got Other Presidents In Trouble":

Was President Trump’s pardon of former Sheriff Joe Arpaio, issued on a Friday night as a deadly hurricane barreled toward the Gulf Coast, unprecedented?  Or just unpopular?

Several political allies and foes immediately condemned the move as inappropriate and an insult to the justice system. But most of the criticized characteristics of Arpaio’s pardon have at least some parallels to previous ones. The number of controversial characteristics of the Arpaio pardon, however, is unusual and raises questions about the political fallout that Trump will face. The Arpaio pardon, in other words, does have historical precedents (as Trump said on Monday) — just not good ones.

Recent prior related posts:

August 30, 2017 at 11:37 AM | Permalink


The whole thing continues -- Arpaio wants his conviction thrown out as well. The judge wants to hear arguments from both sides. Over at Volokh Conspiracy, one person with direct knowledge noted that some states do that by right, others do not.


Posted by: Joe | Aug 30, 2017 11:50:24 AM


This perspective is worth hearing---by the by, it does not appear that the NYTimes, WaPo or any other MSM outlet reported on these issues. They are clearly not BS. Doug, your thoughts?

Posted by: federalist | Aug 30, 2017 12:42:56 PM

federalist, as I briefly explained in another comment thread, the concerns about a biased judiciary here strike me as interesting, and I would especially wonder if AG Sessions or others at DOJ had thoughts about them that they shared with the Prez in some way. But a case I know better, Sholom Rubashkin, strikes me as far more worrisome and the defendant in that case has been imprisoned a decade and has another decade plus to go. If Prez Trump is really concerned about bias, I hope he will take a look at the Rubashkin case ASAP.

Would you agree, federalist, that bias issues are even more of a concern there?

Posted by: Doug B. | Aug 30, 2017 1:25:33 PM

I wish the Trump obsessed would pick an narrative and stick to it. Trump is either (he can't be both):

(a) a clueless man who bumbled his way into the White House against a weak candidate and is now a president who is out of his depth, running a White House which is out of control, acting with unprecedented unprofessionality.


(b) a scheming, nefarious crook who secretly plotted with the Russians to doom the country and enrich himself, a sophisticated populist who panders to Nazis and racists to buttress his plans to doom America and enrich himself, smart enough to bolster his law and order credentials in order to crack down on any dissent that might threaten his plans to doom America and enrich himself.

Pick one, please.

Posted by: Daniel | Aug 30, 2017 1:28:17 PM

Framing has a tendency to be simplistic with some mixture being the accurate reading.

Posted by: Joe | Aug 30, 2017 1:58:54 PM

Doug, your "if Trump doesn't do what I want, he isn't concerned about judicial bias" line of argument is weak at best. I am not really all that familiar with the Rubashkin case, and I hope you can update us with a neutral exposition of the case.

At the end of the day, a law professor with a Harvard education is telling the world on his blog that the prosecution of Arpaio has issues---what does that say about the NYTimes, WaPo and all the other MSM outlets that are not telling the whole story. I get that the Arpaio pardon is a bit of a Rorschacht Test--but journalists and law profs (not you) seem to me to be falling down on the job. And I applaud you, Doug, for saying so. (Tenure is a wonderful thing, lol.)

Relatedly, the whole "disrespect to the judicial system" argument, I think, is just plain silly. First of all, the pardon power IS there precisely to deal with people who have gotten a raw deal either procedurally or substantively. Second, if the prosecution/judicial conduct was hinky (See The Fugitive, lol), then the "disrespect" argument is a watered-down form of lese-majeste rule when it comes to the judiciary. If there was hinkiness in the prosecution, then the itty-bitties of the judiciary or its standing within society is of no moment. If there was not, there are plenty of people who will defend the bench. Note: it seems interesting to me that even people who are bitterly opposed to the pardon, to the extent they deal with the issue, only can say that the maneuvers were legal. They don't hold them up as emblematic of virtuous conduct.

Additionally, Doug, you seem to be holding Trump to a higher standard than Obama--Obama was flat out disingenuous about the nature of the people to whom he granted clemency---"one mistake", "non-violent" etc. You didn't seem to have a problem with that. But now Trump has to satisfy some sort of Doug test?

Posted by: federalist | Aug 30, 2017 2:28:45 PM

federalist, you are attributing to me things I have not said and accusing me of standards I have not created. I did not suggest Trump's failing to grant relief to others is proof his isn't concerned about judicial bias. In fact, Trump's prior comments about Judge Curiel about some other judges suggest he is acutely concerned about bias when he think it impacts his interests and prerogatives. My point was that if judicial bias concerns were driving Trump here, I know of at least one other notable case with a man sentencing to prison for 27 years that ought to garner a close look.

Candidly, federalist, I am surprised you are unaware of the Rubashkin case. Here is a Slate article with some of the basics: http://www.slate.com/articles/news_and_politics/crime/2012/05/did_judge_linda_reade_abuse_her_power_in_convicting_sholom_rubashkin_.html

And here is a 2012 Breitbart article on the Rubashkin case: http://www.breitbart.com/big-government/2012/05/07/rubashkin-case-supreme-court/

I cite the Breitbart piece in part because it suggests to me former adviser Steve Bannon may well know about the case.

Returning to Arpaio, the mainstream media is talking about claims of bias in the Arpaio case, though (unsurprisingly) stressing different facts than powerline. See, e.g., https://www.washingtonpost.com/news/fact-checker/wp/2017/08/30/was-former-arizona-sheriff-joe-arpaios-criminal-conviction-an-obama-political-witch-hunt/

I call the claims of bias interesting because, especially in light of the change of administrations, it would have been interesting to see what the Sessions DOJ had to say about bias claims were Arpaio's case going forward with an appeal. It likewise would have been interesting, as I mean to suggest, to know if Sessions DOJ gave any advice to Prez Trump about this pardon. I personally do not think it healthy that the traditional process for clemency involves applications going through DOJ, but I would like to know if this one did and what DOJ might have said about these bias concerns.

Notably, Prez Trump in his clemency statement did not say anything about bias concerns. Do you want to accuse him of being "disingenuous"? I have not accused Trump or Obama or the Bushes or Clinton of being "disingenuous" in this arena, but I think they are all too stingy in light of the scope and size and problems in our federal criminal justice system (and they many collateral consequences that flow for convictions). I am holding all these Prez to the same standard --- e.g., I think they all should use their clemency powers a whole lot more. As of this writing, there are more than 10,000 clemency petitions pending before Prez Trump and I hope all those eager to be supportive of his Arpaio grant will also urge Prez Trump to grant more. I also think Trump as poorly served, politically, by his advisors here. Had he coupled the Arpaio pardon with a few others, folks on both the left and the right would have really had a hard time assailing his merciful choices.

Posted by: Doug B. | Aug 30, 2017 4:08:55 PM

Sorry Doug--I don't believe that I have mischaracterized anything you have said. You write, "If Prez Trump is really concerned about bias, I hope he will take a look at the Rubashkin case ASAP." Then you write, "I did not suggest Trump's failing to grant relief to others is proof his isn't concerned about judicial bias." It's certainly fair to say that you're setting up an argument that if Trump doesn't do X, then he really isn't concerned.

Does the WaPo "fact-check" deal with the facts in Powerline? If not, then that's a problem because the readers aren't getting the complete picture. I note that you haven't walked back your criticism of the judge's actions in the case. (Note, the judge's actions aren't really relevant to the Obama people went after Arpaio, so the fact-checker really doesn't appear to have dealt with those issues.)

I note that you have not said that I wrongly attributed to you criticism of the process.

As for Rubashkin, IIRC, you mentioned this case on the blog a long time ago. I'm just very very hazy on the details, and I am not in a position to comment on them.

And it seems like BS law that law-breaking (i.e., being illegal) doesn't support a stop. By that rationale, if a city cop sees a deported rapist who is back in the USA, he cannot stop him? What kind of idiocy is that? The judiciary deserved a comeuppance here. I hope Trump sticks it to federal judges more often.

Posted by: federalist | Aug 30, 2017 5:03:36 PM

What "criticism of the judge's actions" have I made, federalist? You are wrongly attributing to me some notion that I agree with everything said in the powerline posting when all I said was that the allegations of bias are "interesting" and I would like to know what the Sessions DOJ think of them.

You seem to be making things up in this thread in disturbing ways. I am not "setting up an argument" when I say "if Prez Trump is really concerned about bias, I hope he will take a look at the Rubashkin case ASAP." Rather, I am saying it Trump is really concerned about bias, I hope he will look at another case that involves bias.

Meanwhile, your last comment gets to the heart of what most folks concerned about the Arpaio pardon think is at the heart of all this. They think Arpaio disagreed with the applicable law, ignored it, and now Trump has given such disregard of the law his Presidential blessing. Since you have argued here for states to ignore Miller, I am not surprised you are quick to praise this kind off disregard for laws disliked. But, of course, that has zilch to do with judicial bias, and the failure of Trump to talk up such bias concerns adds to the jaundiced perspective that your last paragraph fosters.

Posted by: Doug B. | Aug 30, 2017 5:59:42 PM

Also, federalist, reading this tweet thread that comes from the powerline posting makes me especially eager to make sure it is clear that I have not personally criticized the judges involved in the Arpaio matter:

Can you please clarify, federalist, where you get the idea I have in this or other threads engaged in "criticism of the judge's actions in the case"??

Posted by: Doug B. | Aug 30, 2017 6:04:36 PM


Off-topic but interesting.

Posted by: federalist | Aug 30, 2017 6:33:52 PM

"I am saying it Trump is really concerned about bias, I hope he will look at another case that involves bias."

Well, you hope he looks at the case anyway--but your locution looks suspiciously like a Doug Berman test of Trump's bona fides--e.g., if Sessions is really into X, then he won't like the pardon. Maybe you can wriggle off the hook here--but it sure looks like a Berman test.

Posted by: federalist | Aug 30, 2017 6:37:42 PM

"Hey federalist, I have no doubt that Apraio's prosecution includes some elements that might look politically ugly --- I have not studied the case closely, and I wonder if Trump or Sessions have and whether Sessions or anyone else at DOJ gave Trump advice on this pardon. But almost every high-profile federal case involving a political actor or politically loaded issues I have looked closely at usually has some ugly elements."

Note your use of the word "ugly" twice.

You can try to wriggle out of this one too. LOL.

What are the "ugly" elements of the case of the Alabama governor whose name escapes me--the anti-Rovian fantasies of someone kook?

Posted by: federalist | Aug 30, 2017 6:40:31 PM

So,federalist, saying I hope Trump looks at a case is the creation of a "Berman test"? Uh... you have quite a way of inventing a meaning for words.

And saying a case "includes some elements that might look politically ugly" is criticism of a judge? Wow, you really live in a strange world of words.

Posted by: Doug B. | Aug 30, 2017 8:40:06 PM

I saw that Andrew Case tweet thread the other day. Pretty interesting.

Posted by: Joe | Aug 30, 2017 8:42:51 PM

Besides all that, the alleged bias in the Arpaio case was in the underlying civil action, I see no credible allegation of bias in the criminal contempt action where he was convicted.

It is generally easy enough to avoid a conviction for criminal contempt. Civil contempt might be a different story where a judge's animus can get you.

I find it rather astonishing that five days of precious federal criminal trial time were wasted on a misdemeanor carrying a maximum sentence of six months imprisonment. Someone(s) in that deal was being a butthole for lack of a better term.

Posted by: Fat Bastard | Aug 31, 2017 12:03:38 AM

Doug, you can try to wriggle out of it, but in response to a criminal contempt trial engineered to be in front of a judge only and that has questionable issues with respect to judicial ethics, you use the word "ugly" twice, but say then act like you weren't really saying anything and beg off that you haven't really studied the case---puh-lease.

As the Trump commment--come on--"if Trump is really concerned" is the beginning of the tried and not true line of argument . . . .

Posted by: federalist | Aug 31, 2017 8:57:46 AM

I am not trying to wriggle out of anything, federalist, I am trying to determine if you are being dense or venal when asserting falsely that I engaged in "criticism of the judge's actions in the case." Saying Arpaio's case "includes some elements that might look politically ugly" merely references the reality that he is a high-profile political figure with a long history of controversial behavior. That reality alone, with no concerns about the particulars of his trial, could lead many to see his prosecution as "politically ugly." Same could be (and has been) said about the on-going prosecution of Sen Menendez or past prosecutions of Rubashkin, Jeff Skilling, Don Seiligman, John Edwards and so many others (the point of my second use of the word ugly).

What I am saying is that decisions by the feds to prosecute public white-collar figures often demands difficult and necessarily debatable decisions that political factors can often influence or at least seem to influence. This kind of statement in conjunction with the adjective "ugly" cannot reasonably and should not be interpreted as "criticism of the judge's actions in [Arpaio] case." (I said I have not studied the case because I also do not want to be accused by you of blessing the judge's actions --- I just have not looked closely enough to reach a fair independent judgment of the judicial behaviors in this case.)

I suspect you are eager, federalist, to mis-read my words to reinforce your own narrative that justifies Trump's pardon. Please do not; just attribute to me the actual meaning of my actual words rather than engaging in self-serving fantasy interpretations.

Posted by: Doug B | Aug 31, 2017 9:46:11 AM

Ha ha. In response to an post referencing obvious problems with the judge's behavior and a request for your take, you say that there were ugly elements, and now you try to disclaim any criticism of the judge. Ha H ah ha ha ha. And the attempt to wriggle out of the "if trump were really concerned . .. ." equally funny.

Posted by: federalist | Aug 31, 2017 10:45:33 AM

19 comments and I notice a certain prolific commenter is absent. Has he been shown the door?

Posted by: Def. Atty. | Aug 31, 2017 1:31:02 PM

As a lawyer, federalist, I would think you would know how to be much more precise with words. I did not "say that there were ugly elements," nor did I direct any specific criticism to any judge. I said, in response to your posting of a powerline article, that "I have no doubt that Apraio's prosecution includes some elements that might look politically ugly." Do you understand that "prosecution" references more than judicial behavior? that "might look" means a possible perception, not a certain reality?

I am glad you find this amusing, federalist, but I find it so very telling and discouraging that you are so eager to misunderstand and misrepresent what I have said in order to serve your world view.

And Def. Atty., I am not sure where David Behar is, but he has not been formally banned. I have often urged him to be more civil, but often with seemingly limited impact.

Posted by: Doug B. | Aug 31, 2017 3:25:44 PM

You are a very patient man, professor. Thank you for providing this thoughtful blog and forum. That probably doesn't get said frequently enough.

Posted by: Fat Bastard | Aug 31, 2017 7:05:49 PM

Hi, Def. Prof. Berman keeps me around as the Ambassador to the Lawyer Profession from Earth, this our physical world, and not the supernatural world of the profession.

The Trump effect and some legal decisions have money raining from the sky, but for actual work. A little busy.

In the past, I have made defense points. You are just not listening. For example, make a checklist of biases, over 100. Any is a violation of the procedural (real) due process right to a fair hearing. You give me no credit for fairness to your side. I have demanded you morons stop the unconscionable exoneration rate. That is a measure of your incompetence, and of the dereliction of your formal, statutory duty of zealous representation.


Posted by: David Behar | Sep 1, 2017 1:30:10 PM

Fat. Prof Berman is a super fast thinking and talking guy. He likes to get things done. He is not patient.

He likes his daily dose of news from the planet Earth, being isolated in a criminal cult enterprise that brooks no substantive dissent.

If he were in finance, he would be a billionaire. If he were in medicine, he would have saved the lives of millions of people by his innovations. Sometimes, I feel sad at the waste of this great person in this field.

Posted by: David Behar | Sep 1, 2017 8:36:16 PM

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