In his pardon of Joe Arpaio, Donald Trump accomplished five things. He took a swipe at Latinos (never a bad thing in his book), letting them know that no matter what the Constitution says, they’re not protected against abuses by law enforcement. He threw a big hunk of red meat to the baying mob that makes up his base. He added momentum to the slide into authoritarianism in the US and flipped the bird at custom, propriety and civility. He did his fervent campaign supporter Joe Arpaio a solid.
And, oh yeah, he dangled the potential of a pardon in front of witnesses in the Mueller investigation.
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On Friday evening, Donald Trump used his presidential pardon authority for the first time and pardoned Joe Arpaio. Arpaio, the former sheriff of Maricopa County, Arizona, was found guilty on July 31 of criminal contempt of court for failing to comply with an order to stop targeting Latinos, and faced a possible fine and up to six months in jail if justice had been allowed to proceed.
Short-sighted Trump fans rejoiced; the rest of the country, even the least observant, knew that there was something wrong with this pardon.
Several somethings, in fact. Typically, a presidential pardon follows a review and recommendation by the Justice Department. It is often used to commute a lengthy sentence, partly served, that was handed down for a relatively trivial offense, such as a minor drug infraction. The issuing of a pardon is also influenced by the criminal’s admission of wrongdoing, expression of remorse and determination to make right the wrong they did. None of these happened in this case: the Justice Department did not make a recommendation, Arpaio did not spend a day in jail — in fact, was still awaiting sentence — and has never shown the least sign of contrition. The White House statement announcing the pardon made mention of Arpaio’s age and years of public service (doing what, we won’t get into), which make sense as mitigating factors only once a sentence has been handed down.
And then there’s the matter of the violation itself. Arpaio was not found guilty of violating the civil rights of innumerable people, citizens and not, who had the bad luck to look Latino in his county. He was found in contempt of a court order, of flagrantly defying the rule of law and the Constitution that he had sworn to uphold. This wasn’t a case of someone sentenced to fifteen years in prison for smoking a joint — this was an officer of the law, violating his oath in the worst possible way. Under the most generous possible interpretation — President Trump feeling compassion for Joe Arpaio’s advancing years and not wanting to subject an old man to prison — the timing of this pardon is spectacularly inappropriate.
So why would Trump not simply wait for a more appropriate time? Because he wanted to send a message: not to Joe Arpaio, not even to the MAGA-hat-wearing mob who roared their approval on Tuesday night. The target was Paul Manafort, Michael Flynn, and any other witnesses to wrongdoing that is the subject of the Mueller investigation, and the message was: I can pardon whomever I choose to pardon.
The Mueller investigation is at the point where witness testimony starts to accumulate. The grand jury that was convened three weeks ago has been issuing subpoenas to witnesses, including executives at Manafort’s old lobbying firm, as announced by NBC News late Friday. Manafort is a person of interest to the investigation for two reasons:
- He was present at the June 2016 meeting with Russian officials on the subject of compromising information about Hillary Clinton, and
- He has some legal troubles of his own: specifically, work that he did for said lobbying firm on behalf a pro-Russia Ukrainian political party while not registered as a foreign agent, as required by law.
Given Manafort’s legal situation, there is every reason to believe that Mueller has been accumulating information on Manafort’s prior dealings for the purposes of leverage, to encourage Manafort to cooperate as a witness in exchange for immunity or a reduced sentence. Talking with executives of the firm for which Manafort did his dodgy lobbying work seems to support this.
And then, shortly after the NBC News report was released late Friday, the White House announced the Arpaio pardon. Funny timing, that.
Dangling pardons is something that Richard Nixon did during the Watergate investigation, but the presence of the White House tapes made pardons irrelevant: the tapes were the witness, and so we never found out just how far the power of the pardon could be pushed. It seems like it’s in for a workout now. Never one for subtlety when bombast will do, Trump used the pardon of Arpaio to flip the bird at any and all who would check him and his agenda, but also to send a loud message to possible witnesses in the Mueller investigation: I can pardon anyone I want, and nobody can do a thing about it. And I WILL pardon you, if you dummy up.
Donald Trump’s pardon of Joe Arpaio is a disgrace to the nation, a travesty, an abuse of power. And it is legal, and he will get away with it. Joe Arpaio will remain free. And, in matters of strict law, he could probably get away with pardoning Manafort, Flynn or any other potential witnesses to the Mueller investigation. The best (perhaps only) recourse at that point is public outrage. We cannot rely on a Republican-led Congress to act appropriately on their own — but they will listen if we flood the streets. Be ready to act on the day after.