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August 14, 2017

More notable talk by Prez Trump about possible use of his pardon authority

As noted in this post from a few weeks ago, Prez Trump earlier this summer got more than a few media members and academic talking about the historic presidential clemency authority when he reportedly starting asking about his whether he could pardon folks potential caught up in the on-going Russia investigation.  Today brings more summer pardon talk from Prez Trump, but with a notably different (though also controversial) target.  This Fox News piece, headlined "Trump 'seriously considering' a pardon for ex-Sheriff Joe Arpaio," provides the details:

President Trump may soon issue a pardon for Joe Arpaio, the colorful former Arizona sheriff who was found guilty two weeks ago of criminal contempt for defying a state judge’s order to stop traffic patrols targeting suspected undocumented immigrants.  In his final years as Maricopa County sheriff, Arpaio had emerged as a leading opponent of illegal immigration.

“I am seriously considering a pardon for Sheriff Arpaio,” the president said Sunday, during a conversation with Fox News at his club in Bedminster, N.J. “He has done a lot in the fight against illegal immigration.  He’s a great American patriot and I hate to see what has happened to him.”  Trump said the pardon could happen in the next few days, should he decide to do so.

Arpaio, 85, was convicted by U.S. District Judge Susan Bolton of misdemeanor contempt of court for willfully disregarding an Arizona judge’s order in 2011 to stop the anti-immigrant traffic patrols. Arpaio had maintained the law enforcement patrols for 17 months thereafter.  The man who built a controversial national reputation as “America’s toughest sheriff” admitted he prolonged his patrols, but insisted he did not intend to break the law because one of his former attorneys did not explain to him the full measure of restrictions contained in the court order.

He is expected to be sentenced on Oct. 5 and could face up to six months in jail.  However, since he is 85 years old and has no prior convictions, some attorneys doubt he will receive any jail time.

Citing his long service as “an outstanding sheriff,” the president said Arpaio is admired by many Arizona citizens who respected his tough-on-crime approach.  Arpaio’s widely publicized tactics included forcing inmates to wear pink underwear and housing them in desert tent camps where temperatures often climbed well past 100 degrees Fahrenheit.  He also controversially brought back chain gains, including a voluntary chain gang for women prisoners.

Civil liberties and prisoner advocates as well as supporters of immigrants’ rights have criticized Arpaio for years, culminating in his prosecution.  He lost his bid for reelection last year. “Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” asked Trump. “He has protected people from crimes and saved lives.  He doesn’t deserve to be treated this way.”

Stopping the flow of undocumented immigrants across the southern U.S. border was a central theme of the president’s campaign. Arpaio endorsed Trump in January 2016. Trump indicated he may move quickly should he decide to issue a presidential pardon. “I might do it right away, maybe early this week. I am seriously thinking about it.”

Trump could decide to await the outcome of an appeal by Arpaio’s lawyers who contend their client’s case should have been decided by a jury, not a judge.  In a statement after the verdict, his attorneys stated, “The judge’s verdict is contrary to what every single witness testified in the case.  Arpaio believes that a jury would have found in his favor, and that it will.”

Reached Monday for reaction to the possible pardon, Arpaio expressed surprise that Trump was aware of his legal predicament. “I am happy he understands the case,” he told Fox News. “I would accept the pardon because I am 100 percent not guilty.”  The former sheriff said he will continue to be a strong supporter of the president regardless of whether he receives a pardon.  But he also voiced concern that a pardon might cause problems for Trump, saying, “I would never ask him for a pardon, especially if it causes heat. I don’t want to do anything that would hurt the president.”

Trump has not granted any pardons so far in his presidency.

While I was putting this post together, I received an email with a link to this ACLU comment on a possible Arpaio pardon.  The comment closes with these notably sharp statements:

ACLU Deputy Legal Director Cecillia Wang had this reaction to media reports that Trump may pardon Arpaio: “President Trump would be literally pardoning Joe Arpaio’s flagrant violation of federal court orders that prohibited the illegal detention of Latinos.  He would undo a conviction secured by his own career attorneys at the Justice Department.  Make no mistake: This would be an official presidential endorsement of racism.”

August 14, 2017 at 04:26 PM | Permalink


The ALCU's comments while correct are short-sighted. Many social liberals have complained for decades about the stinginess of pardons under both Clinton and Obama. If Trump were to do something like this it would free the president in some future liberal administration to do something similar and shield him or herself from blowback by pointing the finger at Trump. I personally see a more aggressive presidential pardon power as a good thing and if it takes pardoning that asshole to get us there then it is worth the price.

Posted by: Daniel | Aug 14, 2017 5:20:22 PM

It depends upon what this pardon is precedent for. There is plenty of precedent for presidents pardoning (or commuting the sentences of) public officials for putting that president's policy preferences above the legal and constitutional restraints on (mostly federal) executive branch officials. I think the "social liberals" critique is that the pardon hasn't been available to the average criminal who has reformed and "deserves" some type of break from the continuing collateral consequences of a conviction but seems to be readily available to the well-connected who have not reformed. That critique does not just apply to the stinginess of Clinton and Obama, but also the folks pardoned by Reagan, G.H.W. Bush, and G.W. Bush.

Posted by: tmm | Aug 14, 2017 6:25:23 PM


A fair rejoinder. What I was driving at was the fact that when it comes to pardons recent precedent seems to be that presidents shy away from anything even remotely considered daring. Look at Obama's pardon legacy: it is cautious to the point of being dull. So my hope is that in pardoning someone as controversial as Sheriff Joe it would set a precedent for making more controversial...more daring...pardons in the future. It is this daring aspect, rather than elite vs non-elite, that makes the prospect of pardoning Sheriff Joe. Let's get some excitement back into the pardon process!

Posted by: Daniel | Aug 14, 2017 7:19:29 PM

Bush Sr. pardoned certain people involved in Iran Contra.

That is the sort of thing that is involved here, if a different sort of special pleading. It isn't some general principle. It's Trump favoring a specific person with racist implications. This is not the sort of use of the pardon power that I really want to strengthen the precedent for.

Posted by: Joe | Aug 14, 2017 8:49:49 PM

I question whether contempt of court is actually an offense against the United States that can be cured with a pardon.

Posted by: Soronel Haetir | Aug 15, 2017 1:01:33 AM

SH, I had the same thought---might be some separation of powers issues also. But I think it would qualify.

Posted by: federalist | Aug 15, 2017 7:49:55 AM

As to the pardon power here, see Ex Parte Grossman.

"A criminal contempt, committed by disobedience of an injunction issued by the District Court to abate a nuisance in pursuance of the Prohibition Law, is an "offence against the United States," within the meaning of Article II, 2, Cl. 1 of the Constitution, and pardonable by the President thereunder."

Posted by: Joe | Aug 15, 2017 9:57:14 AM


Thanks. That is pretty much a definitive answer to that question.

Posted by: Soronel Haetir | Aug 15, 2017 2:56:47 PM

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