Why does the pardon of Arpaio show contempt for the rule of law?

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10

Much of the criticism of Trump's pardon of former Arizona Sheriff Joe Arpaio has centered on the idea that this shows a disrespect for the "rule of law". For instance, John McCain said (as reported in the LA Times):

The president has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions.

But couldn't that be said about practically any pardon? Theoretically, every prisoner was convicted of properly enacted laws and according to our accepted judicial processes.

While I don't agree with this particular pardon, I don't see what makes it different from other pardons. In all cases, the President is essentially stating that he knows better than the courts and juries that convicted the individuals, or simply that he doesn't care what they said. Pardons are often done for political reasons, and that seems to be the likely justification for this one; it's very consistent with Trump's campaign promises regarding illegal immigration, since Arpaio was well known for being a fierce opponent of it. Pardoning Arpaio plays to Trump's base.

It seems like this pardon is being singled out simply because so few politicians on either side of the aisle agree with it. But what does that have to do with the "rule of law"?

And since the power to pardon is part of the Constitution, isn't it effectively included in the rule of law? How can exercising a legal power be a violation of the law?

EDIT: I understand that many people think this pardon was inappropriate, and agree with them. My question is specifically about why "rule of law" is being mentioned in the arguments against it, since the law specifically allows it.

Barmar

Posted 2017-08-28T23:49:03.227

Reputation: 6 260

For some days in the past months there was even a discussion if the president could pardon himself. Obviously this power has the potential to be somewhat misused. Linking to some sources of the criticism would have made the question even better IMHO. – Trilarion – 2017-08-29T12:45:04.597

3Context is important. The incident needs to be put in the context of the Trump presidency thus far--specifically the last few weeks and the issues with ties to white supremacy. Also note that you are asking about opinions. You can debate this both ways fairly easily. – None – 2017-08-29T15:34:31.447

1I think that asking "what are the stated motivations for viewpoint X? is okay @blip, and not opinion-based. It's not the same question as "Does Trump not care about the rule of law?". The difference is a bit subtle, but it's there. Unfortunately some people – included some of the answerers here – seem to be confused about that. – None – 2017-08-29T15:59:08.860

@Carpetsmoker I don't entirely disagree...but it's right on that line. It's essentially asking about a debate...even if it's not asking for a debate. :) – None – 2017-08-29T16:00:51.227

Would be helpful to have a clear understanding of what the "rule of law" means. The American Bar Association https://www.americanbar.org/content/dam/aba/migrated/publiced/features/Part1DialogueROL.authcheckdam.pdf makes it clear that there is no universally accepted understanding about the phrase.

– BobE – 2017-08-30T00:49:42.487

2Not an answer but Joe Arpaio history of controversial (I would argue racist and demeaning) practices is long. From Tent City to Chain Gangs or Illegal Immigration Posses that guy preference for "medieval" methods is evident. Also the pardon came before the actual sentence (scheduled Oct. 5) and Trump did not consult with the Justice Department. This was rushed to say the least. – armatita – 2017-08-30T10:33:22.697

Related question (with insightful answers): Could a US President abuse their pardon powers to unilaterally make laws?

– sleske – 2017-08-31T07:31:11.350

Incidentally, I believe this is why in Germany the power to pardon rests not with the Chancellor (Bundespräsident), who heads the government, but with the President (Bundespräsident), who otherwise has a mostly representative role and little involvement with day-to-day politics and law making. In the USA the President fills both roles, so the risk of a conflict of interest is greater. – sleske – 2017-08-31T07:35:59.803

Donald Trump has signed an immense amount of executive orders, which attempt to circumvent the legislative process (often failing because congress has to budget for them to be carried out). He's shown contempt for the US system of government literally from day one, by abusing a controversial power, intended to be used rarely. His use of pardons, controversially, to circumvent the legal system, should not be a surprise. It's showing exactly the same contempt for another branch of government. – AJFaraday – 2017-08-31T08:38:29.000

@AJFaraday And didn't he criticize Obama for his excessive use of executive orders to get around the obstruction in Congress? – Barmar – 2017-08-31T16:51:54.513

The law (i.e. the Constitution) specifically gives the President the power to pardon people. It's counterintuitive to say he has no respect for the rule of law. He's following the law exactly, whether you agree with it or not. ALL pardons are technically a show of contempt for the courts. That's what checks and balances do. – Wes Sayeed – 2017-09-01T00:03:17.157

@WesSayeed That's the point of my question, isn't it? Other pardons have not resulted in such a criticism, even by people who didn't agree with them. – Barmar – 2017-09-01T00:05:52.610

Exactly. I'm just responding to some of your critics. – Wes Sayeed – 2017-09-01T00:10:27.670

@sleske, I'm not sure how significant it is to your point, but you gave the same German title (Bundespräsident) for both positions that you mentioned. – jscs – 2017-09-01T00:12:12.397

@JoshCaswell: Oops, thanks, a typo. Unfortunately I cannot edit my comment, but the Chancellor is called Bundeskanzler in German. And no, I don't think it's significant for my point. – sleske – 2017-09-01T12:36:35.090

Answers

186

tl;dr: Arpaio was sentenced for violating a court order, which ordered him to stop violating the law. In this case, a presidential pardon takes away any recourse the judiciary has, thus circumventing the separation of powers and thus the rule of law.


Few people claim that the pardon was illegal. What people mean by "rule of law" in this case is that it was against the unwritten, but well established, procedure of pardons and an attack against the separation of powers.

Procedures and Reasons for Pardons

Specifically, the pardon violated - not legally binding - procedures because:

  • Trump did not consult anyone at the Justice Department
  • Arpaio did not request a pardon
  • Arpaio was not sentenced yet

Additionally, the pardon is generally applied when one or more of these points apply:

  • Facts of the case have changed
  • The individual shows regret
  • The individual served their sentence
  • The sentence is seen as too harsh or unjust (compared to how it was seen when issued)

None of those is the case here. Arpaio is proud of his racist and criminal behavior, and wasn't sentenced yet, so nothing has changed since his sentencing.

Because of this, the pardon is perceived not as righting a previous wrong, or as mercy for a person showing regret, but as going over a judge.

Separation of Powers and the rule of law

In many democracies, state powers are separated into Legislative, Executive, and Judicial powers.

Rule of law specifically means:

the legal principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.

While the pardon itself may have been legal, Trump circumvented the checks the judiciary could exercise over the executive (of which Arpaio was a part of). The law that prevented Arpaio from his illegal activities can be considered bypassed; It wasn't the law that governed, but Arpaio. Trumps pardon of him - without any sign of guilt or wrongdoing - is a support of Arpaio's ignorance of the law, and thus in conflict with the principal of rule of law.

Martin Redish shows in the NYT why this pardon is an attack on the existing process, the separation of power, and thus the rule of law:

This is uncharted territory. Yes, on its face the Constitution’s pardon power would seem unlimited. [...] But the Arpaio case is different: The sheriff was convicted of violating constitutional rights, in defiance of a court order involving racial profiling. Should the president indicate that he does not think Mr. Arpaio should be punished for that, he would signal that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies.

Many legal scholars argue that the only possible redress is impeachment — itself a politicized, drawn-out process. But there may be another route. If the pardon is challenged in court, we may discover that there are, in fact, limits to the president’s pardon power after all. [...]

[I]f the president signals to government agents that there exists the likelihood of a pardon when they violate a judicial injunction that blocks his policies, he can all too easily circumvent the only effective means of enforcing constitutional restrictions on his behavior. Indeed, the president could even secretly promise a pardon to agents if they undertake illegal activity he desires. [...]

[I]f the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power.

Noah Feldman argues the same on Bloomberg:

This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution.

It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society. It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy [...]

But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.

Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.

An Arpaio pardon would express presidential contempt for the Constitution. [...] Fundamentally, pardoning Arpaio would also undermine the rule of law itself.

Additional reasons for outrage and meaning for future investigations

Most of the outrage is of course not (only) because of the contempt for the rule of law, but because this isn't the first time Trump has shown his support for racists and white supremacists. And even those that agree with Trumps endorsement of white supremacists might agree that Arpaio was not a very decent person by any definition.

Paul Krugman argues along those lines in an opinion piece in the NYT. He also gives an overview over Arpaios conviction and how this pardon might affect future investigations (and thus again attack the rule of law):

Joe Arpaio engaged in blatant racial discrimination. His officers systematically targeted Latinos, often arresting them on spurious charges and at least sometimes beating them up when they questioned those charges. [...]

Once Latinos were arrested, bad things happened to them. Many were sent to Tent City, which Arpaio himself proudly called a “concentration camp,” [...]

And when he received court orders to stop these practices, he simply ignored them, which led to his eventual conviction — after decades in office — for contempt of court [...]

Arpaio is, of course, a white supremacist. [...]

Trump’s motives are easy to understand. For one thing, Arpaio, with his racism and authoritarianism, really is his kind of guy. For another, the pardon is a signal to those who might be tempted to make deals with the special investigator as the Russia probe closes in on the White House: Don’t worry, I’ll protect you. [...]

tim

Posted 2017-08-28T23:49:03.227

Reputation: 28 226

1Your opening summary makes a tautology. A "presidential pardon takes away any recourse the judiciary has, thus circumventing the separation of powers and thus the rule of law." That's what a pardon does, by definition. Further, the right of the president to pardon is given by that same law you claim it circumvents! This makes no sense ... unless you redefine "rule of law", which you do almost immediately after the summary. The real rule of law is that Americans have a legal path to change presidential pardon powers. Until then, the question and this answer strain intellectual credibility. – frеdsbend – 2019-02-27T00:57:19.817

Let us continue this discussion in chat.

– jpmc26 – 2017-08-30T06:59:29.407

3It's a shame I can upvote you only once. Excellent work, sir! – Peter M. - stands for Monica – 2017-09-01T15:04:30.127

7IMO, you really should fix the first sentence. Arpaio was actually court-ordered to STOP enforcing the law which the people voted for, and he chose the people of Arizona over that one judge. – Jasmine – 2017-09-01T21:26:26.713

12@Jasmine That's just incorrect. But please feel free to open a separate question about that; it should be on-topic here (or alternatively at law.SE). – tim – 2017-09-01T21:33:50.123

4-1 for the opining about support of racists and white supremacists. Ruined an otherwise outstanding answer. @Jasmine - Technically, he was ordered to stop enforcing a law that had been declared unconstitutional. The proper recourse for him was to appeal that ruling not ignore it. – SoylentGray – 2017-09-12T00:36:51.050

50

First, while nobody doubts that the act is lawful, the right to pardon is controversial by itself. It is a power by which the executive "breaks" the separation of powers and changes a decision coming from the judicial power.

Doubly so if the reason for the pardon seems to be the self-interest of the person who issues the pardon, more than in the general interest (remember that the POTUS is supposed to work for all the country). Joe Arpaio was one of Trump's earliest supporters, and Trump took a page from Arpaio's anti-Latino discourse.

You can see some examples linked to Bill Clinton, for example/contrast. Gerald Ford's pardon of Richard Nixon was pretty controversial, too, even if now it is viewed more favorably.

Triply so if the pardon doubles as a show of Trump's support for racist groups, people and actions, and right after the Charlottesville polemic.

Quadruply so if the pardon benefits someone who has not recognized his errors and keeps saying that he was right in breaking the law.

But the main argument to single out this pardon is due to the nature of Arpaio's offense; he was charged with "contempt of court" because he refused to comply a 2011 ruling that mandated him to stop police practices that were found to be against constitutional rights.

So, it is not only pardoning someone who broke the law, but it is about pardoning someone who broke the law and ignored a court order to stop breaking it.

Critics argue that this is a signal for Trump supporters to ignore legal risks, in the safety that they could be pardoned themselves as long as they work for Trump. Apart from the racism angle, that is relevant because there are several ongoing investigations that could involve the POTUS himself, so could make the legal consequences of lying under oath less of a threat for the people being questioned.

SJuan76

Posted 2017-08-28T23:49:03.227

Reputation: 24 682

18

Adding to this answer, Trevor Noah explains here why pardoning someone who showed contempt of court is problematic: contempt of court is the only lever the Judiciary has on government. If the president begins to pardon political allies when they're in contempt of court, the checks and balances fly out the window.

– Denis de Bernardy – 2017-08-29T10:06:09.727

6Fifthly so when the president has lashed out against the judicary on several occations before... – Guran – 2017-08-29T10:13:01.027

@Guran to be fair, politicians from either side saying one thing while doing a different one is far from being uncommon or new. – SJuan76 – 2017-08-29T10:25:47.467

13@SJuan76 Certainly true. But in this case, i'd rather say that Trump IS walking his talk. Many a politician has made big promises, knowing that other branches will have to deal with the collision between promise and reality. What's unique about Trump is how he keeps pushing for an idea even after congress, courts or sheer reality has declared it wrong. – Guran – 2017-08-29T10:42:49.443

2Having just read tim's answer, it appears that some do indeed doubt that the act was lawful! – JBentley – 2017-08-29T12:25:15.060

6@DenisdeBernardy As I understand it however, accepting a pardon means that you fully admit to the crime as charged, which also means you can be compelled to testify. Should they have done something that Trump pardoned them for, it means prosecutors can use their admission of guilt as evidence against others should it pertain to them. – SGR – 2017-08-29T12:39:37.527

5Arresting illegal immigrants is not anti-latino. – Frank Cedeno – 2017-08-29T13:04:08.230

2@SGR These are two separated points, AFAIK. A) By accepting the pardon you are admitting the crime and B) since you no longer can be prosecuted for the crime that was pardoned, if you are asked the details about that crime you no longer protected by the fifth ammendment, as you no longer are incriminating yourself. – SJuan76 – 2017-08-29T13:10:41.230

33

@FrankCedeno please re-check your data, Arpaio did not get in this mess for "arresting illegal immigrants". https://en.wikipedia.org/wiki/Joe_Arpaio#Controversies

– SJuan76 – 2017-08-29T13:17:59.727

1Aren't checks and balances inherently counter to separation of powers? – Barmar – 2017-08-29T17:06:11.917

2

@Barmar No, they are two sides of the same coin. For example, if Congress and the President both have the power to raise taxes, then Congress cannot use funding to check the Executive.

– Andrew – 2017-08-29T17:28:43.697

@AndrewPiliser I think Barmar was thinking something like overriding a veto, which defeats the president's power to veto laws. Or judicial review which overrides congress's ability to pass laws. It makes sense to allow another branch to overturn a conviction since wrongful conviction is worse than failure to convict. – Matt – 2017-08-30T02:44:32.897

@Matt That's a fair point, there are some overlaps in role. I guess the key is that it's clearly defined which branch takes priority in which circumstances. Congress makes a law < President vetos < Congress overrides veto < Court overturns law. Or for my example, President executes law < Congress funds execution. – Andrew – 2017-08-30T18:15:09.377

"while nobody doubts that the act is lawful" [citation needed] – Yakk – 2017-08-31T20:25:55.413

@Yakk: maybe "there's no good reason to doubt the act is lawful"? That avoids claiming that there are no people with odd beliefs. :P AFAIK, the President's power to pardon people is very broad. If there were rules in place to stop Presidents from pardoning their allies, I think that would have gotten more attention in the media (unless I missed something). Some people are already looking for reasons to impeach Trump, but AFAIK people aren't proposing to impeach him over this, so apparently the ballot box is the only solution. – Peter Cordes – 2017-09-01T19:31:06.587

3@PeterCordes I am unaware of a president pardoning an unrepentant person who violated a court order on unconsitutional behavior while neither the president nor the pardonee acknowledges an offence occurred. There is a lot of precident breaking in this pardon; the wording of the pardon power specifies "an offence against the united states" (if no offence, no power to pardon). The oath to support the constitution (Ie, if it can be shown that the president's position is "screw the consitution, let him go free") I'm not saying these are convincing, I'm saying this is a very strange pardon. – Yakk – 2017-09-01T20:19:23.177

@Yakk: Interesting. It would be good news IMO if any of that was grounds to block or overturn the pardon. – Peter Cordes – 2017-09-01T20:24:58.447

1While a pardon, generally, is not disputed for its legal authority, this case does have some question about the legality of it, as outlined in tim's answer. So I'd say "Nobody disputes" is inaccurate, given a federal judge ordering the DOJ and Trump administration to legally justify it. – PoloHoleSet – 2017-09-11T19:04:10.933

11

To start with, the primary question:

Why does the pardon of Arpaio show contempt for the rule of law?

...isn't easily answerable as it's an opinion. There are opinions stating this, and there are opinions countering this. What may help clarify though is explaining...

While I don't agree with this particular pardon, I don't see what makes it different from other pardons.

...what the differences are. The big difference is simply context. Who the pardon was for, when it was given, and who gave it.

  • Arpaio's entire legacy is one fraught with plenty of accusations of racial profiling.
  • Just a week ago, Trump raised a lot of eyebrows with his inability to overtly condemn Nazis.

This explains the whole controversy...but not necessarily the 'rule of law' part.

Of course, the controversy, itself, is perhaps the main reason the 'rule of law' was brought up. It's simply a good phrase to insert into an opinion piece condemning the pardon.

The full quote from Senator McCain:

"The president has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions."

Emphasis is mine. Again, context is important here. I can't say exactly what McCain was specifically referring to, but it could have been the current race issues Trump has been entangled with, or it could refer to the fact that this pardon came so early in the judicial process of this case. Or perhaps both.

Further context can be found in that same article. Jens David Ohlin of Cornell Law School points out that this could be seen as a continue of Trump's general contempt for judges in general:

"Ever since the campaign and the beginning of his administration he's had a very contentious relationship with the judiciary and hasn't shown much respect for either members of the judiciary or the proper role of the judiciary within our constitutional structure,"...During the campaign, Trump called Chief Justice John Roberts "an absolute disaster" and "disgraceful,"

And a final bit of context from the President himself as to the timing of the pardon:

“Actually in the middle of a hurricane, even though it was a Friday evening, I assumed the ratings would be far higher than they would be normally,” he said.

I can only offer my opinion of that but it does seem that the President was specifically interested in viewership ratings. Which is an odd thing for a President to be dwelling upon. But adds further fuel for the argument that the rule of law isn't necessarily is primary focus here.

Pardons tend to happen well after the verdict, and tend to be quiet affairs. We have a president that has decided to use presidential pardons as a way to generate TV ratings. I can see how some would find that showing a lack reverence for the legal process and the decisions produced from it.

user1530

Posted 2017-08-28T23:49:03.227

Reputation:

1It goes a bit beyond just opinion of whether he deserved or was right. There are discrete legal issues at play, specifically regarding what the crime was, Arpaio's status when committing his crimes, and larger implications on separation of powers. – PoloHoleSet – 2017-09-11T19:05:48.633

9

On "Last Week Tonight with John Oliver" on September 10, 2017, his main story was about Joe Arpaio. He mostly spoke about Arpaio's history, but it was of course bookended by discussion of Trump's pardon, since that prompted the piece in the first place.

Near the end of the piece (about 13:20 in the above clip), he said

that is why it's a slap in the face to the very rule of law itself

but the way he introduced it finally made sense to me. We're not talking about the legality of issuing pardons, which is of course lawful, but the offense for which Trump chose to issue the pardon.

The rule of law means that our public officials are expected to be bound by laws. In particular, law enforcement officials are supposed to be enforcing the laws as written and interpreted by the courts. Arpaio had many objectionable practices in his jails, mentioned in some of the other answers here, but these weren't what he was convicted of. He was convicted for ignoring a judicial order that said that his racial profiling practices against Hispanics must stop. Defying this ruling meant that Arpaio was ignoring the rule of law, when acting in a role where his primary job is to support the law.

Thus, when Trump pardoned Arpaio, and explained that he was doing this because Arpaio was wrongly convicted for "just doing his job", he was saying that Arpaio was correct in ignoring the ruling. That means that Trump is in favor of officials taking the law into their own hands, rather than following the rule of law (at least when the actions of that official are in accord with Trump's agenda). Either Trump doesn't understand the relationship between the law and the job of law enforcement officials, or just doesn't care when the law doesn't agree with his agenda. Considering his history of shady business dealings, I suspect it's mostly the latter. (Know who else doesn't care about the law when it conflicts with their desires? Criminals!)

The fact that Trump used a method that's perfectly legal to make this statement is somewhat incidental to it. Kind of like if someone gets up on a soapbox to make statements denouncing the right to free speech -- the fact that they're depending on the First Amendment to be able to make the speech doesn't contradict the fact that they're expressing disdain for it.

If Trump thinks that racial profiling is appropriate, the proper way to deal with it would be to work with Congress to make it legal (this would probably also require a Constitutional amendment, to override the Equal Protection clause). If he were to actually accomplish that, it might then be appropriate to pardon Arpaio, on the grounds that he was convicted for violating an obsolete law.

Barmar

Posted 2017-08-28T23:49:03.227

Reputation: 6 260

2Not just "ignoring the rule of law," but doing so as an agent of the government, actively violating the rights of citizens. Not disagreeing, adding a smidge of detail. – PoloHoleSet – 2017-09-11T19:08:14.613

1Are you sure September 12th is the right date? That day hasn't reached the US yet. – None – 2017-09-11T19:22:53.963

Yep, you've got it. – Bobson – 2017-09-11T20:29:08.253

This answer is good primarily because it really focuses on the context of the situation. A law enforcement official has been pardoned for not upholding the law. – None – 2017-09-11T22:37:25.477

@PoloHoleSet I changed it to "ignoring the rule of law, when acting in a role where his primary job is to support the law." – Barmar – 2017-09-11T23:46:05.040

3

If I were president and I wanted to break the power of the courts this is how I'd do it.

There are only two interpretations; Trump's pardon shows contempt for the rule of law, or the judgement against Joe Arpaio shows contempt for the rule of law.

The courts are powerless against a president willing to pardon early and often, and Trump is communicating that he is willing. It will be hard now for the judges to block his immigration orders as he will be able to find people willing to ignore the courts.

Joshua

Posted 2017-08-28T23:49:03.227

Reputation: 1 223

2Well, there's also the issues of so called "activist judges" and "judge shopping", which conflate heavily here. I must say, it's hard to take courts seriously in light of these phenomena, so I can understand positions of power, such as sheriff, ignoring court orders. It is contempt, but depending on your opinion, it can be right and patriotic or wrong and criminal. – frеdsbend – 2019-02-27T01:04:51.390

And if he had been held in contempt by a Arizona state court, there is nothing that Trump could have done. – GB - AE7OO – 2020-01-23T13:39:28.543

4There are not only two interpretations. And pardoning a person has little-to-nothing to do with courts upholding the constitution and blocking unconstitutional orders. – None – 2017-08-29T22:41:37.530

3@blip: Consider what would happen if Trump pardoned everybody who ignored a specific court order. – Joshua – 2017-08-29T22:44:29.813

2It'd be like living in some sort of dictatorship or something. Hmm... – None – 2017-08-29T22:49:36.467

@Joshua - You mean, something like this?

– Bobson – 2017-08-30T01:28:12.143

@Bobson: That's the general construction. As stated in that question and the first two answers it could not work for artifact reasons. For only slightly weaker scenarios the support of but one house will suffice to make it work. – Joshua – 2017-08-30T01:36:27.980

-2

There are many reasons to be angry about this pardon. Arpaio abused the office of the sheriff to arrest Hispanics without probable cause and incarcerate them without due process. Pardoning a white supremacist so soon after Charlottesvile sends a clear message to white supremacists that they have support from the president. Trump can attempt to deny this but white supremacists have seen a friend in Donald Trump since his campaign when he neglected to disavow the support of ex-KKK leader David Duke, and he has not taken any significant steps to convince white supremacists that he is not their friend. With this pardon white supremacists will be emboldened, as if Arpaio can get a pardon, why can't they?

You also have to consider that Arpaio supported Trump during the campaign, so Trump is actually handing out favors to political allies. This looks suspiciously like Trump is protecting his political allies from the law, allowing them to violate it with no fear of repercussions.

Here is a quote from Republican Senator Jon McCain on the Presidents pardon as well as the article I got it from:

The president has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions

http://www.latimes.com/nation/sns-bc-us--arpaio-pardon-20170826-story.html

Braydon

Posted 2017-08-28T23:49:03.227

Reputation: 573

6I don't see this directly addressing the rule of law questions, it just explains the anger at the pardon. Could this elaborate a bit further how this pardon is different to other pardons since all pardons are for somebody who broke the law. It looks to have a lot of the context but could be a bit more direct – user1605665 – 2017-08-29T07:53:00.363

2

I'm downvoting this answer for the same reason as @user1605665 - it just repeats the exact same quote as used in the question, but does not address why McCain (and others) say it undermines the rule of law or how it differs from other similar pardons.

– Bobson – 2017-08-29T19:32:36.840

4

Trump did disavow David Duke. Even CNN wrote about it: http://www.cnn.com/2016/03/03/politics/donald-trump-disavows-david-duke-kkk/index.html

– IT_User – 2017-08-29T20:03:38.983

3@Bobson The quote was added to the question after this answer was posted. – Batman – 2017-08-29T20:15:19.623

@AlexanderO'Mara - Oops. Fair point. The rest of my criticism still stands, though - it doesn't address "rule of law" or how it differs from other pardons at all, just why people may be upset. – Bobson – 2017-08-30T01:11:57.733

-2

Why is the Pardon controversial? Because Joe Arpaio is a controversial figure. He holds many views that are called racist. He was unapologetic in his actions, which makes him an unpopular person in the media. (this could be said to be objectively true as you will be hard pressed to find a positive Joe Arpaio story in NYT, LAT, CNN, NBC, etc. vs a host of negative stories. this is contrasted by the fact that the man was elected and re-elected many times)

Let's add to this that Arpaio is also an ardent supporter of President Trump, who is also unpopular in the media (again see above, Lots of negative stories, but the man won the election, winning the popular vote in many places where it was commonly thought by those same media outlets that he didn't have a chance)

Further adding to the controversy, the charge against Arpaio was contempt of court for failing to follow a court order. This is where we start to get in to several grey areas regarding the separation of powers. Contempt of Court is not something you get to have a jury of 12 type trial over. The judge says it, you go to jail. It can be used as a check against the executive because a judge can hit someone with an immediate, enforceable penalty. It's not often thought of that way, but it's there. Next we have the power of the Pardon, which is a check against both the legislative and the judiciary. If congress enacts an ordinance that is beyond the power of the veto, say against left handed basket weaving, the president could, in theory, pardon everyone convicted on such a ludicrous charge. He can also use it as a final check against that pesky Contempt of court thing.

Here is where it triggers all the sturm and drang. In many places, President Trump can do no right. "If he found a cure for cancer, he would be vilified for putting oncology doctors out of work". Likewise, Arpaio has been labeled a racist (regardless of evidence), a white supremacist (regardless of evidence), and is therefore "other". Anything positive between the two of them will immediately be attacked.

Now to address "contempt for the rule of law". This is pure opinion. It is a statement that has absolutely no basis in fact unless you can get in the head of the person and objectively examine their motives. We cannot, so anyone slinging that around just has an opinion, nothing more.

What is factual is that just as the court used a court order then a charge of contempt as a check on the executive (Sherrif Joe), another Executive (Trump) used a Pardon as a check against the Judiciary. The Court and president trump not only worked within the laws, but also the spirit of the laws and well within the spirit of the separation of powers. Very Very far from acting with "contempt" for the rule of law.

Sheriff Joe is the only one here who might be said to have acted with contempt for the law, and even that can be debated. He saw a bunch of laws regarding immigration that were getting twisted and ignored and as a duly elected officer of the law (executive) He went about enforcing them in the way he thought was best. His decisions were made with the goal of enforcing the rule of law, not in contempt of the rule of law. One could even make a case that Sheriff Joe was acting in the spirit of the Nuremburg War Trials, where "Just following orders" is no excuse, and one must follow their conscience instead.

The same reasoning that is being applied to Trump and Sheriff Joe to say that they have contempt for the rule of law can be applied to every single sanctuary city. It can be applied to those states who have "legalized" pot in spite of it being against federal law.

Finally, there has been talk about implications in a pardon over admission of guilt, or remorse, and so on. This one is fairly simple. Sherrif Joe, knows what he did. He does not deny that he did it. He thinks the Judge was incorrect about the law, therefore remorse and so on is unnecessary. This, at least, is pretty clear.

This is not an easy thing to reason through. In the end, unless you definitively know what was in the heads of Trump, Sheriff Joe, and the Judge who cited Sheriff Joe, all you can do is guess. All the Media Hype (both sides, mind you) is just that. Hype. If reporters are losing control of their bladders over this, they should be ignored at best, or at worst, cruelly mocked for their collective silliness.

Paul TIKI

Posted 2017-08-28T23:49:03.227

Reputation: 272

6If Arapio thought his contempt citation was unfair, he could have appealed it to a higher court. He was given specific instructions by the court and for years disobeyed them rather than go to a higher court then too. But he didn't even try. Instead his buddy pardoned him. – DCook – 2017-08-30T18:47:30.497

1There wasn't enough time to even set an appeal. the intent was there, according to USA today, but the pardon made it un-necessary. Arpaio's defense was that the intent of the judge who issued the injunction in the first place was unclear and also that He, Arpaio, was responding to the wishes of his constituents, as he was neither an employee of the State of Arizona nor the Federal Government, but the duly elected sheriff of Maricopa County. – Paul TIKI – 2017-08-30T19:06:20.343

411 years is plenty of time to appeal the initial ruling. He could have stopped the behavior he was told to, appealed and awaited a decision. He thought he was above the law. – DCook – 2017-08-30T19:27:32.857

13The leap between Trump being "criticized for not being able to denounce racism" to "he'd be criticized for curing cancer" is...a bit of a big one. – None – 2017-08-30T20:03:30.210

2@blip He did, in fact denounce the racism though. It isn't brought up in the headlines. Look at the coverage around the Hurricane in Houston. The biggest thing I saw was criticism of the first ladies shoes. – Paul TIKI – 2017-08-30T20:08:05.890

5@PaulTIKI but he really didn't. Not in any way, shape, or form that any normal, decent person would. It's not brought up in headlines because he didn't just do it to begin with. – None – 2017-08-30T21:05:27.240

3“Racism is evil and those who cause violence in its name are criminals and thugs, including the KKK, neo-Nazis, white supremacists, and other hate groups that are repugnant to everything we hold dear as Americans,” is pretty clear to me. He also correctly called out the violence that was being brought by Antifa. Keep in mind that a side effect of Free Speech means you have to put up with people saying things you don't like. Antifa did bad things. A reprehensible slug of a man did even worse things. Nothing he could have said would have been the right thing. – Paul TIKI – 2017-08-31T18:14:17.317

2@PaulTIKI the right thing is simple...immediately and definitively condemn racism. End of story. The wrong thing is to draw false equivalencies. – None – 2017-09-02T01:06:51.093

5

@PaulTIKI "Keep in mind that a side effect of Free Speech means you have to put up with people saying things you don't like." No, in the US it means government has to put up with people saying things it doesn't like. Nobody else has to put up with Nazi crap. Obligatory XKCD: https://xkcd.com/1357/

– Batman – 2017-09-02T05:38:25.360

1@blip He immediately and definitively condemned the violence, followed by the condemnation of racism. How is that unclear? People gripe about how quick he is on some things but when he takes a breath in a very bad and confusing situation It is assumed he a a racist because he took too long to point out the obvious and repeat what he has said repeatedly in the past. this is my point about the fact that he will never get credit for doing the right thing. – Paul TIKI – 2017-09-03T05:13:12.683

@AlexanderO'Mara The Government can't do anything about you saying things it does not like. True. It also means that you cannot pressure the government into doing things to disrupt speech that YOU don't like. Your rights do not trump any other individuals. When you are in my house, web hosting, forum, whatever I have the right to shut your speech down because you are in my house. If you are saying awful things on the public street and you are doing it legally, I do have recourse. I can walk away, or I can respond peacfully in kind. It's called the marketplace of Ideas. Thats all tho – Paul TIKI – 2017-09-03T05:18:48.613

2The Nazis feel differently about his weak 2-day-late speech: 8/14: "Trump Finally Gives Half-Assed Charlottesville Statement to Whining Jew Media" "I knew Trump was eventually going to be like “meh, whatever.”" "He waited to respond because his first response was accurate." "I’m Not Disavowing Trump. Trump only disavowed us at the point of a Jewish weapon." 8/15: "Trump Defends Charlottesville Nazis Against Jew Media Lies, Condemns Antifa Terrorists" "While it seemed like Trump was going to back down and stick to the official story (though halfheartedly), he’s now completely turned around..." – Batman – 2017-09-03T05:55:25.277

Think of it like submitting a poor school paper 2 days after the due date. You probably aren't going to get credit for that. If you think that's harsh, real life is harsher still. – Batman – 2017-09-03T05:58:54.690

2@paulTIKI no, he didn't. There was also nothing confusing about the situation. Nazis are bad. Simple. One does not need to 'ponder' that. – None – 2017-09-03T13:25:09.943

1@blip No, one does not need to ponder that racists and Nazis are bad. He has said things, publicly in the past, on a number of occasions denouncing the KKK and David duke. This goes back a long way. why is it so important to make some sort of emphatic statement on a position that is already well known, Well, well known to people who bother to pay attention. Does he need to make a public statement that Cancer is bad everytime we lose some celebrity to cancer. At what point does this become ridiculous. Did Hillary make a statement? After all, she attended Sen Byrds Funeral, KKK member? – Paul TIKI – 2017-09-05T13:56:42.387

1@AlexanderO'Mara. Frankly, I don't care about what the Nazi's think. They are loathsome idiots. But if one of them said something like "puppies are nice", you might have to agree with them. Does that make you a Neo Nazi? This is where it starts to get downright stupid. The cited sources are given weight only because they make an illusory link between Trump and hate groups. On any other day, no one would give 2 craps about what any of these morons say, but now it's suddenly given the weight of absolute truth? – Paul TIKI – 2017-09-05T14:06:03.467

@AlexanderO'Mara put your mind back to the 80's, when reagan was shot. John Hinckly Jr. Did it to get the attention of Jodi Foster. By your Logic with the Neo Nazi headlines, Jodi foster should have immediately have made a statement that shooting the President is a bad thng, and by not doing so is implying her support for the actions of John Hinckley Jr. and that President needs to die. So far as I remember, she declined to comment when asked. She must be a horrible person. That sounds pretty stupid, don''t it. That is also the chain of logic you are expected to follow in this case – Paul TIKI – 2017-09-05T14:14:48.663

@PaulTIKI So what if Hillary (I assume Clinton?) attended Robert Byrd's funeral? Did you know Robert Byrd denounced the KKK many times before he died, saying it was "the greatest mistake I ever made"? Hint: Just bringing up the name Clinton only works on people who have been conditioned to believe the name is evil somehow. – Batman – 2017-09-05T18:13:52.147

@PaulTIKI You're slippery slopes really don't make any sense, and appear to be some sort of backpedaling. You seemed to think Trump clearly denounced the Nazis, but clear to who? Clearly the Nazis got a very different message, one of empowerment. Telling people who are against the Nazis already that Nazis are bad is like preaching to the quire. Unless he makes it clear to the Nazis and KKK that he is not the ally they believe he is, his words mean nothing, or if they further empower them, worse than nothing. I mean, what do they have to do to get denounced strongly, call Trump names? – Batman – 2017-09-05T18:22:52.413

@PaulTIKI To address some of your slippery slopes though, we aren't talking about always disagreeing with everything any Nazi ever did outside of being a Nazi, indeed that's ridiculous. But Nazis aren't defined by their opinions on animals, so that's a silly metric. Nazis are defined by their hate, especially their hatred of Jews and races that aren't white. All of those defining factors should be pretty easy to denounce. I mean, surely nobody wants to be known as the leader who Nazis actually look up to, right? That would put them in some pretty bad company. – Batman – 2017-09-05T18:37:17.313

1“Racism is evil and those who cause violence in its name are criminals and thugs, including the KKK, neo-Nazis, white supremacists, and other hate groups that are repugnant to everything we hold dear as Americans,” How is this unclear or empowering? Those lunatics will hear what they want to hear because of the same kind of confirmation bias that we all have. we all have confirmation bias and learning to spot it in others as well as ourselves is a hallmark of critical thinking – Paul TIKI – 2017-09-05T18:37:31.527

"How is this unclear or empowering?" I gave you some quotes about the other factors that made it ambiguous enough for those already empowered to read between the lines. "Those lunatics will hear what they want to hear because of the same kind of confirmation bias that we all have." Why didn't they hear it before? Why are they empowered now? – Batman – 2017-09-05T18:41:07.260

@AlexanderO'Mara so how is the logical construct flawed? You call it a slippery slope, but the comparison holds. to make it Generic: A is a terrible thing. If A happens and you do not instantly and vociferously denounce A, then you must be a tacit supporter of A. That is precisely what the media coverage says. In addition, If a lunatic nutjob likes you and says so publicly, you are a lunatic nutjob as well. yet another concept advanced by current media coverage – Paul TIKI – 2017-09-05T18:44:46.553

Have you dipped a toe into some of the crap those loons are spouting? They have been empowered, not by Trump, but by the fact that the Internet gives everyone, ourselves included, a megaphone. The Only reason they are going on and on is because 99% of the time, nobody cares what crap they spew, but now people are looking for links. That means they get a wider reach, an expanded megaphone. If you hadn't gone looking for it, you never would have known what the KKK jerks were saying in the first place. I assume you are a rational person and wouldn't waste bandwidth otherwise – Paul TIKI – 2017-09-05T18:56:17.510

@PaulTIKI 1. 1 lunatic nutjob is quite a bit different from entire notorious groups like Nazis and the KKK. 2. We didn't jump to the conclusion that he is a supporter of them. He may just not be strongly opposed to Nazis and the KKK. Not that that's much better. 3. This is not an isolated incident, but the culmination of prior incidents (like not previously denouncing David Duke, a Trump supported). 4. This isn't some random person, but the President. It's kinda his job to weigh in on such issues. – Batman – 2017-09-05T18:59:22.857

Let us continue this discussion in chat.

– Batman – 2017-09-05T19:03:03.477

One or many makes no difference in lunatic nutjobs. Also, the David Duke was so loaded with spin you could use it as a generator. I listened to that interview a few days ago and it reminded me a a Journalism Joke, "You want to pin down a politician? Ask the when they stopped beating their wife" It was loaded questions without enough context. – Paul TIKI – 2017-09-05T19:08:07.647

-3

It doesn't undermine the rule of law, any more than a couple of other high profile presidential pardons that do not appear to follow normal presidential pardon expectations.

Two of the most controversial:

Bill Clinton's pardons

The most egregious was billionaire Marc Rich. Much like Arpaio, Rich had not been convicted and wasn't serving a jail term. He was living in Switzerland at the time, a fugitive from tax fraud charges. What makes this particularly controversial is the money that went from Marc Rich to the Clintons after the pardon. Rich funded the Clinton Library, and Rich controlled companies hired Bill for some pricey speeches. Much as the Arpaio situation today with him being an early Trump supporter, one has to wonder why Clinton pardoned Rich.

Another questionable pardon by Bill Clinton that appears to erode the rule of law was Susan Mcdougall, who had been jailed on contempt charges for refusing to testify in the Whitewater investigation.

Gerald Ford's pardon of Richard Nixon

This one, in hindsight, was probably the wise thing to do, although it raised considerable ire at the time. Looked like a quid quo pro in getting Ford put in as VP - remember that Ford wasn't elected, he was confirmed by the Senate after the elected VP Spiro Agnew was forced out of office. In retrospect, prosecuting Nixon further wouldn't have accomplished anything useful, and Ford's rationale, so that we can put that behind us and move on, was correct.

So this current pardon, while not desirable, isn't necessarily without precedent. It seems to fall into the same sort of self servant motivation that some of Bill Clinton's pardons appear to originate.

tj1000

Posted 2017-08-28T23:49:03.227

Reputation: 9 859

Neither one of these pardons undermine the rule of law, why? Susan McDougal had already served her compleat sentence of 18 months and had already been released. Nixon on the other hand, had not been charged or convicted of a criminal offense. – GB - AE7OO – 2020-01-23T15:18:52.547

21This doesn't answer why this pardon is controversial, it just rambles on about how other presidents have made other controversial pardoned, for no apparent reason except maybe to try to justify this latest controversial pardoning. – Batman – 2017-08-29T18:02:48.950

8Doesn't answer the question. – BobE – 2017-08-29T18:58:53.617

2Among the things that Ford wanted to “put behind us” was the question of whether the Presidency has too much power. – Anton Sherwood – 2017-08-29T23:53:07.080

2I agree this is off topic, but I hadn't realized that Clinton had made such personally-beneficial pardons. It's interesting context for the bigger picture, but I'd draw the opposite conclusion: all the pardons you mention do undermine the rule of law. If the president can protect his/her allies from the law, that's not a good thing. – Peter Cordes – 2017-09-01T19:17:43.503

3@PeterCordes Some of Clintons pardons definitely were controversial. Note though that this answer is not only off-topic, but also largely unsourced and it seems to contain false or misleading information. Eg not Rich funded the Clinton Library, but his ex wife did. I'm not sure what exactly "Rich controlled companies" means, but my guess would be that that is also far-fetched. I agree with your conclusion though. – tim – 2017-09-02T14:37:03.680

Re "It doesn't undermine the rule of law, any more than...": those other notorious pardons also undermined the rule of law. It's like saying "Ted Bundy didn't commit murder, any more than Albert DeSalvo or Ed Gein." -- this is true in a sense, as "didn't ... any more than" can mean "did just as much" when all the compared entities are similar. – agc – 2017-09-12T06:24:57.387