Ar­paio par­don: Ex­er­cis­ing power in dif­fer­ent con­text

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Jan­uary, ex­am­ples have piled up of a pat­tern of reck­less­ness, im­pro­pri­ety and per­haps out­right ob­struc­tion in Pres­i­dent Don­ald Trump’s over­sight of fed­eral law en­force­ment. And now, with the par­don­ing of Joe Ar­paio, we have the first ex­er­cise of that power in a dif­fer­ent con­text, per­haps serv­ing for Trump as a test run for shut­ting down the in­ves­ti­ga­tion into ties be­tween his cam­paign and Rus­sia. No doubt the pres­i­dent is act­ing on his be­lief that, be­cause the par­don power is “com­plete,” it can­not cause him real harm, and all the rest is pol­i­tics. This is a mis­cal­cu­la­tion.

The in­stances of Trump’s warped ap­proach to the law are le­gion: the de­mean­ing of his at­tor­ney gen­eral for re­cus­ing him­self, as re­quired by the Jus­tice Depart­ment rules, in the Rus­sia mat­ter; the de­mand for per­sonal loy­alty from James B. Comey and the re­quest that the then-FBI director de­sist from in­ves­ti­gat­ing the con­duct of his for­mer na­tional se­cu­rity ad­vi­sor; the ap­peal to the heads of in­tel­li­gence agen­cies to help him con­tain Comey; the fir­ing of Comey for his con­tin­ued pur­suit of the Rus­sia case; and the threats to fire spe­cial coun­sel Robert Mueller. Trump has since re­peat­edly tweeted his de­nun­ci­a­tion of that in­ves­ti­ga­tion — a ma­jor, on­go­ing fed­eral crim­i­nal in­quiry — as a “hoax.” He has hinted in clear terms that he could end all of these trou­bles by the use of the “com­plete” par­don power.

Trump’s record on “rule of law” is­sues, now in­clud­ing this par­don, weak­ens his de­fenses in the Mueller probe — and in any fu­ture de­bate over im­peach­ment. In­stead, for a pres­i­dent con­tend­ing with ques­tions of ob­struc­tion of jus­tice in the Rus­sia mat­ter, the par­don casts his modus operandi in the worst pos­si­ble light. The for­mer sher­iff was con­victed in July of crim­i­nal con­tempt, and Ar­paio’s at­tor­ney an­nounced that he would ap­peal. Only weeks later, Trump high­lighted a pos­si­ble par­don at a po­lit­i­cal rally. He im­pugned the se­ri­ous­ness and mo­tive of the court’s judg­ment, dis­miss­ing it as an at­tack on Ar­paio for “do­ing his job.” Days later, with­out Jus­tice Depart­ment re­view, he ex­tin­guished the con­vic­tion and ended the case.

There is a line that dis­tin­guishes a par­don from di­rect in­ter­fer­ence with the ad­min­is­tra­tion of jus­tice. Trump has crossed it. The dif­fer­ence be­tween this form of in­ter­fer­ence and the oth­ers is, sim­ply, that the use of a par­don has en­abled Trump to en­gage in ob­struc­tion uni­lat­er­ally, not need­ing a will­ing part­ner in the Jus­tice Depart­ment. And it is now re­ported that Trump did, in fact, first try to have the depart­ment drop the case against Ar­paio.

The state­ment the White House is­sued is hope­lessly in­ad­e­quate in jus­ti­fy­ing the par­don. The true ra­tio­nale re­mains a sub­ject for spec­u­la­tion. But there are clues, and they all point in the same di­rec­tion: pure po­lit­i­cal self­in­ter­est. The pres­i­dent touted the par­don at a po­lit­i­cal rally when he en­cour­aged a sym­pa­thetic crowd of sup­port­ers to reg­is­ter loudly how much they “like” Ar­paio, a po­lit­i­cal ally whom the pres­i­dent also ap­pears to “like” per­son­ally. The tim­ing of the par­don sug­gests that Trump’s pol­i­tics may have en­tered into the de­ci­sion from an­other di­rec­tion: a bid to soften the blows now rain­ing down on him from the Bre­it­bart wing of the party in the af­ter­math of Stephen Ban­non’s de­par­ture.

So the pres­i­dent has sit­u­ated this par­don squarely within the realm of pol­i­tics, not crim­i­nal jus­tice. The ac­tion was not con­sis­tent with the con­sti­tu­tional norm that par­dons are a ju­di­ciously con­sid­ered act of grace, a mea­sure to cor­rect for in­jus­tice, or oth­er­wise re­lated to the pres­i­dent’s con­sti­tu­tional re­spon­si­bil­ity for the public wel­fare. It ex­poses, as do other Trump’s other in­ter­ven­tions in law en­force­ment, the pres­i­dent’s blind­ness to the dif­fer­ence be­tween his own in­ter­ests and his obli­ga­tions to the con­sti­tu­tional du­ties, val­ues and norms he took an oath to de­fend, in­clud­ing the “faith­ful” ex­e­cu­tion of the laws. This supremacy of self-in­ter­est is also ev­i­dent in his re­fusal to sep­a­rate him­self from his busi­ness in­ter­ests and his con­tin­u­ing pro­mo­tion of those in­ter­ests by os­ten­ta­tiously ar­rang­ing events on prop­er­ties from which he de­rives per­sonal in­come.

Of course, all pres­i­dents must and do, in some cases and to some de­gree, weigh pol­i­tics in the bal­ance in meet­ing their re­spon­si­bil­i­ties. But Trump shows no sign of know­ing when po­lit­i­cal con­sid­er­a­tions are ap­pro­pri­ate, and he does not do “bal­ance.” This is all, it is in­creas­ingly clear, be­yond him.

Trump seems to be­lieve that the par­don power is so “com­plete” that it is his ace in the hole, his ul­ti­mate pro­tec­tion. But it will be of no use to him if the time comes — af­ter fur­ther de­vel­op­ments in the Rus­sia case, or for other rea­sons in this deeply trou­bled ad­min­is­tra­tion — that Congress must con­sider im­peach­ing him for sys­tem­at­i­cally vi­o­lat­ing his oath to put his con­sti­tu­tional obli­ga­tions ahead of his po­lit­i­cal or per­sonal in­ter­ests. At that time, the Ar­paio par­don is sure to be part of the story of this pres­i­dency and, very con­ceiv­ably, of how it came to an end.

Bauer, pro­fes­sor of prac­tice at New York Univer­sity School of Law, served as White House coun­sel to Pres­i­dent Barack Obama. He wrote this col­umn for The Wash­ing­ton Post.

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