Pardon me, but pardons all about power
In the wake of President Donald Trump’s pardon of “America’s toughest sheriff,” Joe Arpaio, there’s been no shortage of outrage from both the left and the right over what many believe was an ill- advised political stunt, meant either to send a message to other Trump loyalists or to those who would undermine him.
And indeed, it felt particularly gratuitous of Trump to announce the pardon when he did, himself admitting he was happy to take advantage of the Hurricane Harvey media coverage in which “the ratings would be far higher than they would be normally, the hurricane was just starting,” as he said at a press conference Monday.
But worse than pardoning Arpaio — a seriously terrible human being — and worse than pardoning him in the midst of a natural disaster to maximize eyeballs — is the little- discussed fact that presidential pardons have become crass and corrupted and probably shouldn’t happen anymore. More on that in a minute.
I’m not going to litigate here the long list of Arpaio’s greatest hits — there are countless catalogs of the dastardly deeds he has committed over the years, earning the disdain of liberals and conservatives alike.
Little things, like racial profiling, squandering hundreds of millions in state resources, mishandling as many as 400 sex crimes ( some involving children), and suing journalists for writing critically of him. Like I said — little things.
But I will point out that presidents have the power to pardon, even and especially people we don’t like.
People like Jimmy Hoffa. Richard Nixon pardoned the notorious union boss so he’d help Nixon get reelected.
Or Richard Nixon. Gerald Ford pardoned the disgraced former president a month after he resigned over Watergate.
Or New York Yankees owner George Steinbrenner, who was pardoned by Ronald Reagan for obstruction of justice and conspiring to make illegal campaign donations to Nixon.
From the stars of the Iran- Contra scandal, to tax evader Marc Rich to Bill Clinton’s own stepbrother, countless unsavories have been awarded reprieves by presidents on both sides of the aisle.
When Trump defended his pardon of Arpaio by pointing out all these others, that was the literal definition of “whataboutism” — suggesting that just because other presidents have pardoned other lowlifes, there’s nothing to see here.
But if, like me, you think Arpaio is despicable and should have to spend some hard time in one of his own “concentration camps” — his words — wearing pink underwear and eating meatless meals, then the comparisons are apt and instructive. Which is to say, all this is proof that pardons have become an unnecessary political weapon of the uniquely powerful to reward their friends or barter for political chits.
This was not their original point.
Pardons were a carryover from the British monarchy, favored by Federalists like Alexander Hamilton and enshrined in Article II, Section 2 of the Constitution.
The intended purpose of pardons was threefold. The first was mercy, without which Hamilton argued “justice would wear a countenance too sanguinary and cruel.” The second was to correct an injustice — a wrongful imprisonment or a revision of social policy. And the third, and perhaps most important, was in case of insurrection. Hamilton argued, “A well- timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.” George Washington used it thusly to pardon members of the Whiskey Rebellion, and Abraham Lincoln used it to pardon low- level Confederate officers.
Very few of the most controversial pardons in modern history served any of these purposes. Taking Arpaio as an example, mercy was premature — he hadn’t been sentenced yet, and legal experts agreed it was unlikely he’d see jail time. There was no injustice to correct — he was convicted for willfully violating the law. And obviously, this wasn’t a pardon to end an insurrection.
Pardons are no longer an important tool of federalism, but instead the political equivalent of picking dodge ball teams, a way for presidents to wield power without even a modicum of shame. And in this respect, Trump is behaving no differently than a long line of presidents before him.
Presidential pardons have become crass and corrupted and probably shouldn’t happen anymore.
Former Maricopa County, Arizona, Sheriff Joe Arpaio
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