The Arpaio Pardon: You’re Not the Audience

In the wake of yet another deranged speech from the president — and his seeming promise to pardon Joe Arpaio — the pundit class has taken to explaining how outrageous an Arpaio pardon would be. Such analysis often focuses on what it would symbolize: which is usually described as some proof that Trump doesn’t respect judges, the law, or by others as yet more evidence Trump coddles racists.

I don’t disagree with any of that analysis. But I think it misunderstands the audience for the pardon.

As things move forward, Trump will increasingly retain support among his base — who are, to a significant degree, the racists who marched in Charlottesville and the racists who elected him by 10 points in South Carolina over a Christian Conservative candidate. Trump will manage to hold onto power to the extent that his base can sufficiently scare people — more moderate Republican voters, Republican politicians, counter-protestors — such that they won’t act against Trump. But the formula by which that base succeeds will depend on Trump’s other, more respectable, base: cops.

As I pointed out repeatedly during the election, while some dissidents objected, the National Fraternal Order of Police and many other police groups stood by Trump, even after the Access Hollywood video made it clear the candidate endorsed sexual assault. Trump continues to feed this base, with repeated tributes to cops’ roles in keeping “us” “safe.”

Meanwhile, Brennan Center’s Mike German has started to track a disturbing trend. I believe he, like me, thinks the FBI is generally adequate at infiltrating white supremacist groups to disrupt the most outrageous attacks. But what law enforcement is not doing is policing right wing violence at protests the same way it polices left protests.

There have been a number of protests over the last six months where the police — and this is in Portland, Oregon, two in Berkeley, California, one in Sacramento, California, one in Huntington Beach, California — where these protests were well-advertised within the far right movement as, “Come and beat somebody up.” And yet the police response wasn’t adequate enough to prevent these running street battles. In fact, it appeared the police were standing back and allowing these street battles to go on, which only meant the next rally people were going to be better prepared to commit more violence. And it conditioned these groups that have been hyper-violent in the past, these far right groups, to come expecting the police would let you commit acts of violence.

In Portland, Oregon, the police actually let the people from the militia groups participate in arresting their political opponents. That was also true in Huntington Beach, where it’s almost like the police are sanctioning them to apprehend people and bring them to the police, which is extraordinarily dangerous to give these groups the idea that they have the authority to put hands on people, much less put hands on their political opponents.

So I wasn’t surprised to see the violence getting out of hand, and I think we as a nation have to have a serious conversation with our local law enforcement and with the federal government. I’m sure the FBI was aware of any number of people coming to this protest who were subjects of domestic terrorism investigations. Why was there not a more robust response?

Particularly since we see over-policing of non-violent protests by groups like Occupy, Black Lives Matter, Standing Rock anti-pipeline protests, not to mention just regular political conventions. The Republican National Convention, you have troops there just to manage the crowds. So I don’t understand why in these latest series of events, where groups that have a history of violence and are advocating that they’re going to bring people to be violent, somehow the police seem to be caught off guard.

As he explains what I laid out above. Trump can retain power — which will increasingly require grabbing authoritarian powers — by enabling his street thugs to beat up the government’s opponents.

If you look at the ways authoritarian governments obtain police powers, this is exactly how they do it. They sort of turn a blind eye to street thuggery and allow people to commit political violence against opponents of the government. That street violence becomes unbearable for the public, who demand that the government do something about it so the government can justify stopping protests altogether. And, of course, what the government is really interested in is stopping protests against government policies. We’re seeing that kind of thing, where there are a number of bills in state legislatures that would remove civil liability from people who run over protesters in the street. That’s taken on a very disturbing aspect with the latest murder in Charlottesville.

So while feeding his explicitly racist base with hateful rhetoric is important, it’s even more important to ensure that the cops remain with him, even as he fosters violence.

There is no better way to do that than to convey to police that they can target brown people, that they can ignore all federal checks on their power, with impunity (this is probably one key reason why Trump has given up his efforts to oust Sessions, because on policing they remain in perfect accord).

There is no better way to keep the support of cops who support Trump because he encourages their abuses then by pardoning Arpaio for the most spectacular case of such abuses.

You’re not the audience for this pardon. The cops are.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

19 replies
  1. earlofhuntingdon says:

    Prosecutorial immunity for abuse. Where’s my uniform?

    Sessions is the perfect choice for this. He is, too, for resurrecting the failed so-called war on drugs – really, a well-documented war on the left and overwhelming a war on people of color. Private prisons are dependent on it, as are those who sell prison labor – the latter an explicit exception to the legal prohibition of slavery.

    Forfeiture laws are also a big part of this. These allow police departments to seize and keep cash, cars and other assets of an alleged criminal, even in the absence of charges, prosecution and conviction. Getting seized assets returned is like waiting for Godot.

    Outside of authoritarian regimes we usually call our worst enemies, that itself would be criminal theft. In America, it is a major boost to local law enforcement budgets and a brilliant lever to persuade local departments to cooperate in whatever programs preoccupy the Feds from time to time.

    Some states are trying to rein in forfeiture law excesses. But the Feds are so addicted to the power they generate over local leos, that they’ve put in place a runaround, wherein the Feds take responsibility for the seizure, trumping state restrictions, but allow local leos to keep the assets. From one perspective, that could be seen as bribery. It also obliterates the states’ rights mantra that racists like Sessions often vomit forth.

    • Anon says:

      It is also, significantly, something that Arpaio used for many years to fund his department. Indeed long before the present conviction there was a bitter fight within the county over his use of the asset forfeiture (i.e. seizure) and the question of where the money went (mostly to him). Some of his local opponents noted that he was using these goods to pay salaries and disguising that rather than being open about the process and this demand in turn was fueling an increase in the process (targeted primarily at brown people). The fight was detailed by the Phoenix New Times.

  2. Betty says:

    Very perceptive analysis and very depressing. It’s not clear that many people are seeing this and its significance.

  3. Rugger9 says:

    Let’s not forget the voter suppression aspect to ensure only the “right” votes are counted, in line with Stalin’s dictum that while everyone could vote, he counted the votes.

    Arpaio’s prospective pardon would be out of line with recent practice which accounts for proportion of the sentence served, future threat, attempts to make amends and some contrition. None of these are present in Arpaio’s case, but it doesn’t matter. Pardoning power is potentially absolute (we haven’t litigated the self pardon yet) and as Ford did for Nixon, there is no requirement even of charges being laid against someone. bmaz noted this a while back in the discussion about idea that Assange would be pardoned.

    I think the analysis here is spot on, and frankly the FOP thugs need to grasp the concepts that they are citizens first, and that if the state denies the ability to peacefully seek redress of grievances, at some point the citizens will find alternatives. History is chock-full of examples involving pitchforks, etc. and vigilante committees that are organized when justice breaks down (including in San Francisco) because it is for sale.

    Another remotely possible aspect to consider is what the military will do if the lawlessness becomes entrenched in the police. The Posse Comitatus act prohibits military policing except where martial law (the UCMJ) applies, noting that the USCG is part of DHS, not DOD which is why they can do drug busts as part of their duties. It would take a ballsy commander to risk their career on rejecting an illegal order from the WH, but there is precedent for refusing to obey an illegal order and we who are/were officers are well aware of the option. I think it would have to take rampant lawlessness for the military to restore order without a declaration of an emergency, and I’m not sure whether that would be Constitutionally wise. I don’t support the idea at all, but watch it get floated by some idiot in the future if things do not improve because a narcissist will not stop until they are out of options.

    In the “ships have sailed” department, letting the Bushies swamp the court system means it is less likely that redress will be found in litigation as would be possible in earlier times.

  4. Charles says:

    While I wouldn’t disagree that Trump wants to keep cops in his base, Marcy, he’s probably not going to be keeping all cops on board. Just the violent, racist ones. So, I see these cops as the most important subset of his violent, racist base. But he was talking to all violence-approving, racist Republicans–and that’s probably 20% of the American public.  If you heard the crowd in Phoenix react, the Republicans in that crowd strongly approve of Arpaio.

    So, cops, yes. But specifically those cops who approve of violence and racism.

    • bmaz says:

      Naw, it is a lot more than that. Police unions were almost across the board for Trump, and they do speak for their rank and file. Not to mention that all cops are fine with a pro law enforcement approach of Trump and his DOJ, not just the racist bigot ones. It may not be the only “audience” for the Arpaio consideration, but Marcy is correct about its significance.

      • pseudonymous in nc says:

        Police unions were almost across the board for Trump, and they do speak for their rank and file. 

        True, but at some point that’s going to set up big conflicts between the leaders of big-city forces and the Blue Man Group of the FOP brigade. The chief of police for Bumfuck, AR or Suburbiaville, MO is not much different than rank-and-file because the entire department is a couple of dozen officers and a dog, but NYPD and LAPD and so on have thousands of officers and high-profile chiefs and answer to high-profile mayors. This may underline how Officer Magahat has the green light to operate with impunity, or that ICE can continue to operate as brownshirts against brown people, but big-city chiefs aren’t in a position to tolerate subordination at the president’s behest for too long.

        • bmaz says:

          I don’t see that kind of big conflict coming, at all. Not at least until the environment materially changes. The interests are the same for now, up until they are not.

  5. Rugger9 says:

    The NY Times has an op-ed today making the argument on due process grounds that Arpaio cannot be pardoned since it would undermine the ability of a court to enforce the injunction against violation of constitutional rights including racist profiling (what got Arpaio in trouble), among other excesses like civil forfeiture or illegal searches in other jurisdictions.  It did not seem to think that anyone would have standing to bring an action, but I can think of two parties: Judge Snow for the invalidation of his injunction (and subsequent trial) without due process of a court hearing or the long-standing pardon process, and anyone roughed up by the MCSO on Arpaio’s orders.

    Also how is it possible that Don Siegelman remains in prison for not even committing a real crime (especially after SCOTUS gutted the bribery statute to save GOP Governor McDonnell), yet Arpaio gets a pardon?  Politics.  Obama needed to pardon Siegelman, and that is a black mark on his record.

    Read the whole thing: https://www.nytimes.com/2017/08/24/opinion/trump-arpaio-pardon-arizona-sheriff.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region

    • bmaz says:

      Some of the most asinine magic unicorn legal garbage ever. Not worth the electrons used to display it for reading.

  6. Rugger9 says:

    Well, no worse than the idea of pardoning Arpaio for “50 years of public service”. Maybe Caesar Disgustus needs to explain that to the hundreds of rape victims whose cases were sidelined to keep deputies free to harass the “others”.

    If you can point to a precedent where the question of presidential pardoning power limits have been litigated, I’d appreciate it.

    I think the professor’s “real point” is that we are about to have the unrestricted pardon idea tested by someone who will accept no boundaries on their conduct, and so what arguments could be made to oppose C.D. that don’t sound like Tenther stuff? If the outcome will be that Caesar can pardon away with impunity, where does he get stopped if, for example, he decides the 2020 election is for losers and blows off injunctions?

    • bmaz says:

      Well, first off, who has standing to challenge the decision in a competent court? That is a pretty tough question, so I don’t think there can or will be any effective litigation.

      Couple of decent CRS pieces

      Here

      Here

      There is a lot of discussion out there, but the bottomline is there really no recognized limitation on the power to pardon, except the offense has to have been committed (no pardon for future conduct) nd it has to have been a federal offense.

  7. orionATL says:

    we have entered the era in american history later to be known as the era of the trump brownshirts.

    this did not begin with charlottesville. it began with the attendees to trump’s campaign speeches and with the trump-managed digital gangs on the internet that beat up trump critics.

    earlier small crises like the standoff in oregon last year and the prior ranching standoff in nevada were a clear forewarning. the incessant wildly exaggerated ranting of the national rifle association set the stage years ago.

    it will take nothing more than a wiley demagogue to set this tender on firey.

    guess what?

    this situation is not going to heal itsrlf in any way unless and until there is a strong consensus among a large majority of citizens, of lawmakers and of judges. before that time, the fires will continue to burn and then slowly unite.

    do you still believe now that all that is needed to calm the country down is a set of soothing promises by the democratic party to the “working class”?

  8. orionATL says:

    rugger9 @11:29am

    “… also how is it possible that Don Siegelman remains in prison for not even committing a real crime (especially after SCOTUS gutted the bribery statute to save GOP Governor McDonnell), yet Arpaio gets a pardon?  Politics.  Obama needed to pardon Siegelman, and that is a black mark on his record…. ”

    exactly right. the treatment of siegelman by alabama republican politicians, prosecutors, and judges, not to mention karl rove’s planning and assistance, is one of the monumental injustices of our time and a high-water mark of bush political corruption.

    • bmaz says:

      Just put up a pretty comprehensive post on the pardon.

      Re Siegelman, I tend to agree generally, though there were individual aspects that were different for him from McDonnell, and that courts found sufficient to keep enough of his counts to keep him in prison. I think it was a thin reed, but I understand how it happened. Obama really should have pardoned him, or at least substantially commuted his sentence. It was scandalous and gutless that he did not.

      • orionATL says:

        thanks bmaz. –

        it wasn’t the details of the seigelman/scrushy case that made it scandalous. it was the behavior of the federal prosecutor, leura canary, and of federal appellate judge mark fuller.

        here’s just a taste of the details:

        http://www.tulanelink.com/tulanelink/siegelman5_box.htm

        unfortunately, this telling is insufficiently detailed and lurid.

        at one point i think 49 of 50 state attorney generals filed in favor of seigelman.

  9. orionATL says:

    think what you will of the political meaning of trump’s alleged pardon but from my standpoint, trump’s pardon targeted the federal judiciary that has reined him in.

    true, this decision will also play well with the large and important population of immigrant haters in trump’s miniature ruling coalition., but the big “fuck you” was to judge snow and the entire federal judiciary (except for those who federalist society appointees who would applaud).

    will this cost him judicial support? we’ll see. so far, republican party politicians, including the many, many judicial politicians, seem as malleable re trump as house speaker paul ryan.

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