If former Arizona sheriff Joe Arpaio is pardoned in coming days — as President Donald Trump strongly suggested Tuesday night — the move will be the latest in a long line of hotly-debated political pardons that critics say violate the spirit but not the laws of executive authority.
The U.S. Constitution gives presidents sweeping power to grant pardons to convicts, or to people who have not even been charged with a federal crime.
For most applicants, seeking a pardon is a long, arduous process that begins with the pardon attorney at Justice Department headquarters — an overloaded, understaffed office that currently does not have an appointed leader. The department recommends anyone seeking pardons wait at least five years after conviction, and be able to demonstrate their remorse and regret for what they’ve done.
Arpaio, 85, has done none of that, and it’s unlikely he will. If pardoned, the former sheriff of Maricopa County, who was an ardent supporter of Trump’s 2016 campaign, will be one of the rare but not unprecedented instances when a president decides to short-circuit ongoing or expected legal proceedings and preemptively grant a reprieve.
Arpaio was convicted last month of contempt of court after a judge found he had violated a previous court order not to detain people on the mere suspicion that they were illegal immigrants. Arpaio is awaiting a sentencing hearing scheduled in October.
“Was Sheriff Joe convicted for doing his job?” Trump asked the cheering crowd. “He should have had a jury but you know what, I’ll make a prediction, I think he’s going to be just fine. But I won’t do it tonight because I don’t want to cause any controversy. But Sheriff Joe should feel good.”
Robert Bauer, a former White House counsel during the Obama administration, said an Arpaio pardon would ignore criteria long used to evaluate potential pardons — that a presidential act of mercy should correct some past injustice or oversight, or serve some greater public good.
Granting a pardon now, Bauer said, “is a de facto interference in the administration of justice.”
Other presidents have granted what pardon lawyers sometimes refer to as “political pardons” — grants that anger not just prosecutors but the opposition party, and have led to charges of favoritism or abuse of authority.
President Gerald Ford granted a preemptive pardon for his disgraced predecessor Richard Nixon. President George H.W. Bush granted full pardons to six former Reagan administration officials, including former defense secretary Caspar Weinberger. Those pardons were granted as Weinberger was preparing to face trial on charges he lied to Congress about the Iran-contra affair.
In the final days of his presidency, President Bill Clinton pardoned fugitive financier Marc Rich, an act that led to a long-running corruption investigation but ultimately no charges. Clinton also pardoned his half brother for an old drug conviction.
The Constitution describes the pardon power in simple, broad language: the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
P.S. Ruckman Jr., who writes the Pardon Power blog, said it would be “cruel and unusual punishment” for Trump to suggest a pardon for Arpaio and not deliver. But when it is granted, Ruckman said, “it will send a horrible signal that only the rich and famous get pardoned. That’s false. There’s people who’ve been waiting for pardons 10 or 15 years, and those people will certainly be heartbroken.”
Arpaio’s conviction was the end result of a years-long battle with the courts over his hard line tactics on immigration. During the Obama administration, the Justice Department found his deputies routinely discriminated against Hispanics, including many citizens and legal residents, targeting them for unmerited scrutiny in a hunt for illegal immigrants.
Jonathan Smith, a former Justice Department official who handled that case, said a pardon of Arpaio “would be a travesty.”
“There’s nothing improper or illegal about it, but it does send a message ... that the president is going to permit violation of the rights of not only immigrants, but people who are residents and citizens of the United States. He’s sending a message that if you’re not white, if you’re Hispanic, that your rights don’t matter,” Smith said.
Arpaio’s lawyer Jack Wilenchik rejected such accusations, and said Wednesday he hopes the pardon will come before his client’s October sentencing.
“This has been a political show trial from day one, and it’s only fair that it has a political end,” Wilenchik said. “There’s no such thing as a normal pardon process. History is full of examples of pardons that were political — that’s what a pardon is.”
Wilenchik said his client was not guilty of any crime, but rather became a target of the Obama administration, which he accused of “laying a trap for law enforcement.”
Wilenchik attended the Trump rally Tuesday in Phoenix, but the former sheriff did not. In an interview Wednesday with Fox News, Arpaio said, “I really appreciate the President’s nice comments and support. One day I’ll go public and talk about the tremendous abuse of the process. If they can do what they did to me, they can do it to anybody.”
Activists in Phoenix who have long opposed Arpaio’s police practices were furious about the expected pardon from Trump.
“He’s doing nothing but spitting in the face of the people in Arizona who have suffered through what Sheriff Arpaio has done to us,” said Carlos Garcia, executive director of Puente Arizona, which advocates for migrant workers. “By pardoning Arpaio, not only is he erasing what he’s done to our people, but he’s tying himself to that legacy.”
The Washington Post’s John Wagner contributed to this report.