ARPAIO AND OTHER WRONG PARDONS
Presidents repeatedly use this power for personal, political and familial interests
President Trump’s pardon of former sheriff Joe Arpaio has been condemned across the political spectrum. Arpaio committed contempt of court in continuing patrols that targeted immigrants in Arizona for 17 months. While Trump described Arpaio as a “worthy candidate” for a pardon, Trump’s action flouted both the purpose and process for presidential pardons.
Having said that, Arpaio pales in comparison with some past misuses of pardon authority. In a system of overlapping checks and balances, this is one of the few near absolute powers. Ironically, the provision has proved the fallacy of self-restraint by politicians in their use of unchecked authority. Left to their own devices, presidents have repeatedly used this power for their personal, political and familial interests.
Trump reportedly bypassed his own Justice Department and pardon staff (which would have been unlikely to support clemency). Arpaio was not even sentenced and was looking at either no jail time or fewer than six months. Moreover, Arpaio remained defiant in the case and has not accepted responsibility.
The biggest problem with the pardon is the crime itself. Our legal system depends on compliance with court orders ranging from search warrants to injunctions, particularly for law enforcement officials. Arpaio put himself above the law while claiming to enforce it.
If Trump felt Arpaio warranted clemency, he could have simply negated his sentencing. That is what President George W. Bush did with Scooter Libby, a former adviser to Vice President Cheney. Libby was convicted of perjury and obstruction for lying about his conversations with reporters about the identity of CIA operative Valerie Plame. Bush refused calls for a pardon as inappropriate and instead commuted Libby’s 30-month prison term but not his $250,000 fine.
Trump’s hints of a forthcoming pardon at his Phoenix rally last week drew a response illustrating its popularity with his base. If politics did triumph over principle, he would not be the first such president to yield to temptation:
Thomas Jefferson was accused of using the power to pardon his political allies convicted under the Alien and Sedition Act. He also pardoned Dr. Erick Bollman to allow Bollman to testify against Jefferson’s arch rival, Aar- on Burr, in 1807 for treason. Bollman refused to accept the pardon and thus did not testify.
Franklin Roosevelt pardoned Conrad Mann for running an illegal lottery. Mann was a close political associate of Kansas City boss Thomas Pendergast, who made a fortune off illegal alcohol, graft and gambling and is credited with putting Harry Truman into office.
Truman pardoned one of Louisiana’s most corrupt politicians, Democrat George Caldwell. “Big George” skimmed money off government projects, including the building fund for Louisiana State University. He served time for tax evasion and bribery.
Richard Nixon pardoned the infamous Teamsters union leader Jimmy Hoffa in 1971, and Hoffa supported Nixon for re-election as president in 1972. The mob is thought to have murdered Hoffa to keep him from disclosing its control of the union.
Gerald Ford pardoned his predecessor, Nixon, in what many felt was a political payback for his resignation. While there is no evidence of a quid pro quo, the pardon was denounced by many as sparing Nixon (and Republicans) an impeachment and a trial.
George H.W. Bush issued pardons for individuals involved with the Iran-Contra affair, including former Defense secretary Caspar Weinberger. Ronald Reagan and Bush were viewed as di- rectly or indirectly responsible for the criminal conspiracy in which proceeds from illegal arms sales to Iran were used to secretly and illegally fund the contras’ guerrilla war against Nicaragua’s Sandinista government.
Bill Clinton was a serial abuser of pardon authority, using the power to benefit family, friends and political donors. Clinton granted a pardon to his own brother, Roger Clinton, and his friend (and fellow Whitewater business partner) Susan McDougal. Most notoriously, he pardoned a man who is generally viewed as one of the least worthy recipients of a pardon in modern history: the fugitive financier Marc Rich. Rich was a major Democratic donor and unrepentant for his tax evasion, racketeering, fraud and illegal dealings with Iran.
Trump’s pardon of Arpaio looks almost papal in comparison with some of these. None of that alters the fact that it was unwarranted and unwise.
Justice Anthony Kennedy once complained that the pardon process had been “drained of its moral force.” If so, the Arpaio pardon is the dregs left at the bottom of a now depleted and despoiled process.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.