PARDON. POLITICS. POWER.
For U.S., pardon will play into perceptions, elections
President Donald Trump’s pardon of Joe Arpaio had the immediate effect of getting the former Maricopa County sheriff off the hook for a conviction on criminal contempt charges.
But it will have a much broader impact, experts said, on things as varied as high-profile investigations in Washington, efforts to crack down on illegal immigration, the 2018 mid-term elections and how at home Latinos, including U.S. citizens, feel in the United States.
Far beyond Arpaio himself, the pardon is likely to have ripple effects on how Trump is perceived, and how the world reacts, in the time ahead.
By pardoning Arpaio, an early and loyal supporter of his 2016 presidential bid, Trump has sent an unmistak-
able signal that he is willing to grant clemency to his political allies.
The Arpaio pardon comes as Trump’s White House is under an investigation that ranges from allegations that his campaign colluded with Russia as it interfered in the 2016 election to Trump’s finances and whether he obstructed justice by firing former FBI Director James Comey.
Former FBI Director Robert Mueller was named special counsel for the Russia probe in May.
The timing of Trump’s pardon for Arpaio, who has not publicly expressed remorse for his crime, could be interpreted as a reward for loyalty to him and as a way to undercut any probe into his affairs.
Among those potentially in legal jeopardy are Paul Manafort, Trump’s ex-campaign chairman whose residence was recently raided by the FBI; Michael Flynn, the former national security adviser; Jared Kushner, a key White House confidant who is also Trump’s son-inlaw; and Trump himself.
“The other news yesterday (Friday) that sort of got lost ... is that Mueller is now issuing some subpoenas,” said Louis DeSipio, a professor of political science and Chicano/Latino Studies at the University of California-Irvine. “It’s not getting into the inner circle by any means but that investigation is ramping up. I hesitate to use the word, but does Trump’s sort of arrogance move him then toward moving against Mueller.”
Trump’s allies already have made the case Trump can use the pardon as he wants.
In a December interview with NPR, former House Speaker Newt Gingrich argued Trump could make liberal use of pardons to shape his White House regardless of political rules and convention.
“He has a broad ability to organize the White House the way he wants to. He also has, frankly, the power of the pardon,” he told Diane Rehm. “I mean, it is a totally open power, and he could simply say look, I want them to be my advisers, I pardon them if anybody finds them to have behaved against the rules, period. And technically under the Constitution, he has that level of authority.”
— Ronald J. Hansen and Dan Nowicki
Judicial authority
Arpaio’s pardon, after a federal judge convicted him of defying another judge’s order, could undermine judicial authority. And it certainly raises additional questions about Trump’s acceptance of judicial authority.
The president has excoriated federal judges for opposing his ban on migration from several majority-Muslim countries, and he claimed MexicanAmerican U.S. District Judge Gonzalo Curiel couldn’t be impartial in the Trump University case because of his background. In a twist, Curiel is expected to rule soon on whether to allow the first “dreamer” deported under the Trump administration to return to the U.S.
In his Lawfare blog, Bob Bauer, a former White House counsel to President Barack Obama, wrote, “Trump disrupted the operation of the criminal justice process to score a political point, and he believes that the ‘complete power to pardon’ gives him all the space he needs for this maneuver and requires of him only the most pro forma, meaningless explanation of his action.”
Sen. John McCain, in a statement Friday, expressed concern that Arpaio had flouted the law and Trump’s pardon “undermines his claim for the respect of the rule of law.”
Others disagreed. U.S. Rep. Trent Franks in a tweet said Trump “did the right thing.” “Joe Arpaio lived an honorable life serving our country, and he deserves an honorable retirement,” he stated.
It also raised questions about how other officials will respond to court orders to stop a particular action they believed to be justified in doing.
Arizona State University law professor and constitutional law expert Paul Bender said pardons typically have been reserved for individuals who have spent years in prison and are elderly or ill. But this one, he said, is unusual.
“The president is saying, ‘That’s against the law, but I don’t care and I’m going to let him off,’ ” he said. “That seems to be flying in the face of the rule of law.”
Bender said it isn’t common for a judge to charge someone with criminal contempt, and even less common for someone to be convicted of deliberately violating a court order.
“Here you have the courts feeling it is important to say, ‘Hey, this guy didn’t do what he’s supposed to do and we think it’s important to discipline him,’” Bender said. “It (the pardon) is a slap in the face to the judiciary.”
And if people start ignoring the courts, he said, the entire government structure breaks down.
“Trump is saying it shouldn’t be a crime to deliberately disobey a federal judge,” he said. “That’s a direct confrontation of our system, which is three separate branches of government that are supposed to respect each other.”
— Kathy Tulumello and Alia Beard Rau
More profiling
Trump’s pardon of Arpaio outraged many Latino community leaders in Arizona, where for years the sheriff illegally targeted Latinos, including legal immigrants and U.S. citizens, to hunt down people in the country illegally.
But some Latino and immigrant advocates fear Trump’s pardon will have a far-reaching impact on Latinos all over the country, not just in Arizona.
The pardon, they say, will likely embolden other sheriffs and law-enforcement officials to adopt similar heavy-handed policies that trample on the rights of Latinos in other states — especially since Trump is already pushing local police to join forces with federal immigration authorities to sweep up people in the country illegally, even those with long ties to this country and no criminal record.
“I obviously am worried that other sheriffs will engage in similarly lawless behavior,” said Chris Newman, legal director for the National Day Labor Organizing Network, a civil-rights organization based in Los Angeles.
What is worrisome is that Arpaio’s illegal immigration practices, which he continued even after being ordered by a federal judge to stop, affected all Latinos, not just immigrants in the country illegally. Trump’s pardon sends the message to politically elected sheriffs that they have the green light to follow the same practices, he said.
“It became clear to a lot of people that Sheriff Arpaio views immigration as a pretext to act on his hostility towards all Mexican Americans and Latinos,” Newman said. “Same is true with Trump. Trump cloaks his racism; he uses immigration, and fears about immigration as a pretext to subordinate the rights of all Mexicans, Mexican Americans and Latinos living in the United States.”
But Newman also sees a bright side to Trump’s pardon. It could push more cities and states to adopt so-called “sanctuary policies” to protect Latinos and immigrants from discriminatory policing polices by limiting local police from enforcing federal immigration laws.
In California, for instance, Democratic lawmakers have introduced a bill that would make the entire state a sanctuary for immigrants without authorization to be in the U.S. who don’t commit crimes and contribute to the state’s economy by limiting police from enforcing immigration laws.
“This will further motivate lawmakers who are trying to completely separate immigration enforcement from criminal law enforcement,” he said.
Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, agreed that Trump’s pardon of Arpaio sends a message to law enforcement that the illegal targeting of Latinos to find and arrest those who are undocumented is justified. The organization is one of several civil-rights groups that filed a civil lawsuit against Arpaio’s immigration practices.
“It certainly sends a troubling message that some of those who engage in anti-Latino discrimination or anti-Latino profiling might be OK,” he said.
But he said the criticism Trump has already received for pardoning Arpaio would make it hard for him to pardon another law-enforcement official for doing the same thing.
Trump’s pardon, however, reinforces the strong perception among many Latinos that he is anti-Latino. Over the years, many Latinos grew to distrust law enforcement in general because of Arpaio’s immigration practices.
“And for Trump now to pardon him I think it just dredges up all that resentment and awareness directed toward Arpaio but at law-enforcement authority because he was the most prominent law-enforcement authority in the country at least from the Latino perspective for a number of years,” Saenz said.
He noted that Trump launched his campaign in 2015 by disparaging Mexican immigrants, accused a federal judge of being biased because he was Mexican American and included no Latinos in his Cabinet for the first time in decades until his first pick for Labor Secretary dropped out and Trump nominated Cuban-American Alexander Acosta.
“It’s just one more item on long list of actions that have to be seen as anti-Latino,” Saenz said.
— Daniel González
Latino voter turnout
With crucial congressional midterm elections in 2018, Trump’s pardon of Arpaio gives Hispanic voters another reason to organize and mobilize at polls.
“By taking this action, Trump has sealed the fate of his Republican Party with the Latino and immigrant communities,” Ben Monterroso, executive director for Mi Familia Vota, said in a written statement.
From a historic perspective, Republicans already were in for a hard time next year. The president’s party almost always loses seats on Capitol Hill in the election cycle when the president is not on the ballot. Since the Civil War, only three presidents — Democrats Franklin Roosevelt and Bill Clinton in 1934 and 1998 and Republican George W. Bush in 2002 — saw their parties expand their congressional presence in midterm elections.
Democrats need to gain a net 24 seats in the House to retake control of that chamber. Hispanics are a rapidly growing demographic group, but not necessarily in areas where Democrats are out of power but competitive.
About 18 percent of the U.S. population is Hispanic, according to 2015 estimates by the U.S. Census Bureau.
Of the 30 most-promising House seats for Democrats to take from Republicans, the Hispanic population is collectively just under 20 percent. But that is largely because of a few seats with substantial Hispanic populations.
Seven of those 30 seats are at least 30 percent Hispanic. Twelve of those GOP districts are less than 10 percent Hispanic, and seven are less than 5 percent Hispanic.
“I’m not sure how wellknown Arpaio is outside of Arizona, but this will certainly be part of the 2018 messaging to Latino voters in Nevada, where there’s a Senate race, and in Southern California, where you’ve got up to seven seats that can tip and in four of those you have significant Latino populations,” said DeSipio of UC-Irvine.
“If the Democrats are organized, they will use this as part of the message that Trump may eat the Trump Tower taco bowl but really doesn’t care about the Latino community,” he said.
In Arizona, Latino voter mobilization to oust Arpaio in 2016 was one reason why Trump carried Arizona, traditionally a presidential red state, by only 3.5 percentage points over Democratic rival Hillary Clinton.
“We voted out Arpaio and we will hold all law enforcement officers accountable to a far higher set of standards,” said Alejandra Gomez, co-executive director of Living United for Change in Arizona, or LUCHA. “And rest assured, the pardon of Arpaio will ignite a new generation of organizers even fiercer than those in Arizona.”
— Dan Nowicki and Ronald J. Hansen
Law enforcement
No other Phoenix area law-enforcement agency has pursued illegal immigration enforcement the way Arpaio’s office did. And police officials Friday said nothing about how that will change following Arpaio’s pardon.
Maricopa County’s Sheriff Paul Penzone in February announced he would no longer permit “courtesy holds” for Immigration Customs Enforcement in his jails.
And Phoenix police recently tightened their policy on when and how officers contact those they suspect to be in the country illegally. Sgt. Jonathan Howard said the agency follows state law, which requires officers to call ICE if they arrest a suspect they intend to release without detention. There, ICE agents will verify the individual’s immigration status. (Those who are arrested and will be booked into jail will have their immigration status verified in the jail.)
Howard said the agency has been judicious and has never used it to target Latinos.
Because of a court’s order from the racial-profiling case, MCSO has additional constraints on how it handles illegal immigration. These restrictions still stand.
MCSO Chief of Staff Stephanie Cherny said the agency cannot prolong any stop in order to communicate with ICE or to ascertain immigration status. Deputies also must contact a supervisor before reaching out to ICE.
Penzone repeatedly has stated he hopes to heal the wounds between his office and the Latino community.
“As a policy, MCSO does not do immigration enforcement,” Cherny said. “It is not an immigration-enforcement agency.”
But if local agencies did want to, Arpaio’s pardon signals that in a Trump administration, there would be support if they continued the work even if a court found the enforcement involved racial profiling. — Megan Cassidy