//  8/29/17  //  Commentary

Late Friday night the President pardoned Joe Arpaio, the disgraced former sheriff of Maricopa County.  Arpaio was convicted of violating a federal court order that directed Arpaio to stop unconstitutionally racially profiling Latinx persons.

The President’s announcement — made at around 8 p.m. on a Friday night dominated by news of the impending hurricane in Houston, Sebastian Gorka’s resignation, and a few other things too —  generated some strong reactions from commentators.  Many commentators echoed the same concerns they raised when  the President first teased the possibility at a rally in Arizona just two weeks after racist mob violence in Charlottesville left Heather Heyer dead and many others injured, including Deandre Harris, the black man who was brutally beaten by white supremacists.  Critics generally fell into one of two categories: one set of claims focused on the threat the pardon posed to the “rule of law” (amorphously defined); the second set focused on the nature of Arpaio’s conduct, namely systematic, state-sanctioned racial discrimination and grotesque uses of state police power, including forcing prisoners to camp outside in tents in 120-degree weather.  

Josh Chafetz, in a tweetstorm and a Washington Post op-ed, argued the focus should be on the latter. Mike Dorf argued the former, rule-of-law concern was still important.

Josh had offered the following thought experiment (which Mike commented on in his post):

Imagine a civil rights activist in the South in the 1960s is held in contempt of court by a racist judge. I see nothing wrong with the DoJ of a pro-civil-rights administration (say, that of LBJ) pardoning the civil rights activist even without going through the normal DoJ pardon procedures. That's *formally* similar to the Arpaio pardon. But that just points to the fact that formalisms here are a distraction. The problem with the Arpaio pardon isn't that the Sessions DoJ didn't go through the normal procedures before approving it. The problem is that he's being pardoned for a crime arising out of being a racist and an incredibly harsh wielder of state power. And the pardon is therefore very much of a piece with other highly objectionable acts of this administration.

We think the question raised by the Arpaio pardon is a recurring problem with the Trump administration: namely, many of the Trump administration’s actions pose multiple serious problems, and the Trump administration is often engaged in highly concerning conduct on several fronts at the same time.  So it can be hard to pick between the problems, or choose what to focus on (think health care versus Russian interference in the election; widespread corruption versus voter suppression; the list goes on).

Like Josh, we find the specter of pardoning a man who used state power to engage in violent, systematic state-sanctioned racism to be both grotesque and worthy of immense condemnation.  Jeff Flake’s “I would have preferred that the President …. Let [the judicial process] take its course” doesn’t cut it.  Neither does Paul Ryan’s “the speaker does not agree with the decision.”  Anyone who read the Phoenix New Times thread on Arpaio, or any of the stories of the horrifying, inhumane, and unconstitutional ways in which Arpaio wielded state power, should feel the same.  And we agree that it is important to talk about the substance of the conduct for which Arpaio was pardoned.  There are hundreds of thousands of candidates for pardons.  Trump chose the one who terrorized Latinx communities with over-policing and racial discrimination; subjected people to conditions that led to deaths, health emergencies, and wildly inhumane conditions; and committed a number of other misdeeds along the way.

Like Mike, however, we think it would be a mistake not to flag the “rule of law” issues with Trump’s pardon that Josh suggested were “the wrong way to criticize the Arpaio pardon.”  Yes, it might be that worthy pardons could be made even where, as here, the normal DOJ process is flouted.  But of course, that process exists in part to ensure that Presidents don’t make pardons that are wildly and substantively unjust. 

Most importantly, we think that Mike is right that the Arpaio pardon should and must be viewed as of a piece with the broader challenge that the Trump administration poses to our legal system.  (Warning to people who misread things:  We’re not arguing that Trump should be treated differently because he is Trump.  We’re asking that Trump’s actions be evaluated in context, together with his other actions, i.e., that context enters into the analysis, as it should).

Thus, the problem is not simply that the President pardoned an official for a criminal contempt conviction, or even that he pardoned an official for a criminal contempt conviction that arose from constitutional violations.  It’s also not just that the President pardoned a political ally.

Mike noted Trump’s “disrespect for, and flirtation with defiance of, the courts as independent authorities--from his (racist) attack on Judge Gonzalo Curiel during the campaign [the judge on the Trump University case] to his description of Judge James Robart as a ‘so-called judge’ after he enjoined Trump's travel ban.”  Mike also pointed to Trump’s “firing of FBI Director James Comey.”

But the list is, in fact, much longer than that.  Trump has repeatedly attacked courts in general after losing several rounds of litigation concerning the entry ban. He attacked the Ninth Circuit Court of Appeals after the initial entry ban ruling. Before the election, he complained about the judge in the Trump University case (in addition to suggesting the judge was incapable of doing his job because of the judge’s race). He has complained about Attorney General Jeff Sessions recusing himself from the Russia-related investigation (which Sessions was required to do). He has complained about former Acting Director of the FBI Andrew McCabe, after McCabe assumed the helm at the FBI. He has reportedly floated the idea of firing Special Counsel Robert Mueller. He has suggested that Mueller would cross a “red line” if Mueller investigated Trump’s business transactions.  The list goes on and on.

So it is not as though President Trump has identified a substantively problematic area of law that he thinks should not be enforced, or a particular official who harbors substantively vile views (as in Josh’s example, where an administration has declined to enforce a contempt order issued by a racist judge). Instead, Trump repeatedly challenges the idea that he and his supporters are subject to any laws at all.  Trump challenges officials like Jim Comey or federal judges who try to apply laws to Trump and his supporters.  Trump also challenges officials who fail to obstruct investigations and fail to prevent laws from being applied to Trump and his supporters—Jeff Sessions, Republican legislators, Andrew McCabe, etc.  Trump seeks to evade the law whenever he encounters it; he seeks to avoid being held accountable in any respect and in any sphere.

These sorts of “systemic” considerations are relevant to questions of constitutional law, such as the threat that the Arpaio pardon poses to our constitutional system.  Remedial doctrines incorporate considerations of “systemic” threat or error.   For example, the Supreme Court has declined to apply the Fourth Amendment’s exclusionary rule in cases that involve negligence by individual officers.  But it has also repeatedlysuggested that application of the exclusionary rule would be warranted in cases of “systemic error” or “recurring or systemic negligence” on the part of the relevant officials.  Likewise, in cases involving writs of habeas corpus to prisoners convicted in state court, the Court has suggested the substantive rules governing the availability of the writ could change if affirmative evidence demonstrated that state court judges were engaged in a pattern of constitutional violations, as opposed to isolated incidents of individual violations.

Taken in the context of Trump’s frequent attacks on the concept of law, the message of the Arpaio pardon is clear,as other commentators and public officials have pointed out:Support Trump and the most objectionable and racist parts of his agenda, and you are immune from accountability. Support Trump, and you are not subject to the laws.  Indeed, that’s how Trump’s supporters interpreted the pardon—as a sign that the President would pardon his allies who were found guilty in the Mueller probe.  Greg Sargent wrote Monday about how the Arpaio pardon sent this message.

Joe Arpaio mattered to Trump because he was a Trump ally, particularly in the most vicious and racist parts of Trump’s agenda. Arpaio vocally supported Trump during the campaign; he avidly supported Trump’s racist birther campaign against President Obama; he institutionalized racism through extreme and draconian forms of policing in order to further an anti-immigrant agenda; and he defied a federal court to do so.   That’s what Trump rewarded.

The reality is that President Trump has adopted a pattern of conduct that differs in important respects from what prior administrations have done.  And his conduct poses unique challenges to the rule of law.  Trump is not simply challenging a particular legal rule or ruling that can be confined to a substantive disagreement or area.  He is not identifying a substantive pocket of law that he thinks is unjust or wrong.  He is not merely rewarding one supporter, or challenging just one critic.  He is challenging the idea of law itself.  And that’s a problem.  Of course,so too is his pardoning violent, state-wielded racism.

None of that means Trump’s exercise of his pardon power is reviewable.  But it still poses a grave danger to the fight against institutionalized racism and to the idea of the rule of law.  


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