Some Thoughts On The Arpaio Pardon

As you probably already know, Trump has pardoned Joe Arpaio. It is an abominable act by a lawless jackass. One lawless jackass pardoning another lawless jackass. Trump and Arpaio are really two peas in the same racist bigot pod; both supreme narcissists, ignorant and contemptuous of the rule of law down to their deepest bone.

And Marcy Wheeler is right that the nation as a whole is not the audience Trump is signaling, and while “Trump’s base” may be part of his audience in making this pardon move, it is likely even more intended for law enforcement. 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.

The ACLU statement on the pardon is good:

For more from the ACLU, see the Twitter feed of Cecilia Wang, the litigation lead for ACLU on the Melendres and Arpaio litigation (she is seriously great).

But the ACLU doesn’t really go far enough. A couple of weeks ago I tweeted:

Because there is no point to which @realDonaldTrump will not shit on the rule of law and sanctity of federal courts. What a piece of shit.

That was a little flippant, but there is simply no question but that the pardon of Joe Arpaio is Donald Trump is degrading the Constitution and undermining the very fabric of the sanctity of courts and Rule of Law itself. If the Presidential pardon was not so unbound, this pardon would not stand up. It violates every iota of the American rule of law. It also is heinously invasive to the separation of powers in that it infringes on the power of the federal courts. But, again, don’t buy any nut telling you this pardon is unconstitutional or won’t stand up. That is silly, it is Constitutional, and it will stand up.

That said, Noah Feldman did a good piece explaining just what a Constitutional affront this act is, and should be considered:

To see why pardoning Arpaio would be so exceptional — and so bad — you have to start with the sheriff’s crime. Arpaio wasn’t convicted by a jury after a trial for violating some specific federal statute. Rather, he was convicted by a federal judge on the rather unusual charge of criminal contempt of court.

Specifically, Arpaio was convicted this July by Judge Susan Bolton of willfully and intentionally violating an order issued to him in 2011 by a different federal judge, G. Murray Snow.

Judge Bolton convicted Arpaio of criminal contempt. She found he had “willfully violated” the federal court’s order “by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” And she held that Arpaio had “announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.”

This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution.

It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society.

It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy, the way George H.W. Bush pardoned the Iran-Contra participants, including Oliver North.

But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.

Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.

An Arpaio pardon would express presidential contempt for the Constitution. Arpaio didn’t just violate a law passed by Congress. His actions defied the Constitution itself, the bedrock of the entire system of government. For Trump to say that this violation is excusable would threaten the very structure on which is right to pardon is based.

Go read Noah’s entire piece at Bloomberg, you should. It perfectly captures everything I have thought ever since Arpaio was convicted by Judge Susan Bolton in July, and pardon talk started up. And, make no mistake, Arpaio started carping about getting a Trump pardon almost immediately, even if behind the scenes. It started long before the last 10 days.

To add insult to injury, Trump had the gall to issue this announcement after glibly leaving for the personal golf driving range at Camp David with a message to the victims in Texas and the Gulf Coast, who are currently being hammered by a Category Four hurricane and face imminent disaster. Trump’s message was “good luck”. What a complete cad.

And after callously signing his order implementing his patently discriminatory transgender ban for the military. Chris Geidner has a good report on that.

Just for the record, this is Trump’s first pardon issued, and for that he chose the most craven one imaginable. For comparison, both Obama and Bush waited nearly two years, and applied the power only to subjects properly vetted by the DOJ traditional pardon process, a copy of which is here for reference. Arpaio was not even eligible for consideration at this point, much less deserving under the guidelines. Those guidelines can be found here, pay particular attention to §1-2.112. To be clear, Arpaio had not even been sentenced yet, and was almost certainly not going to be sentenced to incarceration by Sue Bolton. I have known Judge Bolton for nearly 30 years, and I just cannot fathom that she was going to do more than give a nominal fine to Arpaio.

Craven jackass Arapio has already started crowing about his ill begotten good fortune through, what else, Twitter:

Thank you @realdonaldtrump for seeing my conviction for what it is: a political witch hunt by holdovers in the Obama justice department!

What a racist bigot ass. Joe Arapio came into office on the wings of lies he told his initial backers. Before we close, a little story I wrote here a few years ago:

Joe Arpaio did not magically come to be Sheriff of Maricopa County. It happened because the two previous occupants of the Sheriff’s Office were, shall we say, problematic on their own. There was Dick Godbehere, who was, prior to being Sheriff of the fourth largest county in the United States, literally a lawn mower repairman. No, I kid you not. And he served with the same level of sophistication you would expect of a lawn mower repairman.

Then came Tom Agnos, who was supposed to return “professionalism” to the Maricopa County Sheriff’s Office (MCSO). But Agnos was a subservient Sun City resident who led the MCSO into not just the biggest cock-up in Maricopa county law enforcement history, but one of national and international proportion. The Buddhist Temple Murder Case where nine buddhist monks and acolytes were lined up and shot in the back of the head, execution style, at the Wat Promkunaram Buddhist Temple on the west side of Phoenix.

It was out of the Buddhist Temple Murders Joe Arpaio came to be. A group of prominent Phoenix trial attorneys, both criminal and civil, wanted an alternative to Tom Agnos and the whitewashing coverup he was conducting on one of the greatest coerced false confession cases in world history. The group of trial lawyers coalesced around the upstart primary candidacy of a local travel agent with a colorful background. Yep, one Joseph Arpaio.

Joseph Arpaio promised that initial group of trial lawyers he would clean up the MCSO, release the damning internal report of the gross misconduct that had occurred in the Temple Murder Case under Tom Agnos, which lead to at least four false and heinously coerced confessions, and that he would refuse, under all circumstances, to serve more than one term in office. It was a promise made and, obviously, a promise long ago broken.

To be fair, Arpaio did release the internal report on the Temple Murder Case, which led to five plus million dollar settlement for some of the most wrongfully arrested souls in American history. But with that promise kept within a short time of taking office, Joe Arpaio breached the solid promise he made to the people who gave him the seed funding carrying him into office. And Arpaio has made a mockery of his word, as a man, ever since by repeatedly running for office and sinking Maricopa County into depths of depravity and fiscal distress beyond comprehension, from the vantage of the MCSO.

So, now you know just exactly how Joe Arpaio came into office on the wings of lies. He leaves today on the wings of a Constitutional fraud and spittle in the face of the Rule of Law.

As a parting shot, the picture at the head of this article is of Arpaio at a cocktail party getting a surprise visit from Michael Manning, the local civil rights attorney who has fleeced Maricopa County for over $50 million because of Joe Arpaio’s craven and illegal actions. Arpaio was not thrilled to get his photo taken.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
29 replies
  1. Peterr says:

    There are lots of audiences and pressures here, but as I look at this story, the biggest thing I see is this: Trump is giving a big poke in the eye to the federal judiciary, which has ruled against Trump’s Muslim ban and other idiocy coming out of the White House. The next-to-limitless pardon power is something Trump is apparently willing to use to smack anyone who has offended him, and the federal courts (Gorsuch excepted) have done that with a certain degree of regularity.

    Given the way in which he has been thwarted with regard to The Wall, “Repeal and Replace” Obamacare, and other so-called promises from his campaign, this was completely expected. Down the road, I anticipate Paul Ryan and Mitch McConnell to basically ignore the White House, which will piss Trump off even more, and he’ll be looking for opportunities to “announce my presence with authority.” Like Crash Davis confronted with the rookie phenom Nuke LaLoosh, this will not end well as McConnell will tip the Dems off to the pitch that’s coming and will delight in the ball ending up in the bleachers.

    (See Bull Durham if this makes no sense. For that matter, see Bull Durham just because it’s a great fun movie. Crash Davis’ “I believe . . .” speech is truly amazing. “Oh my . . .”)

    Pardoning a desert-based racist sheriff while a hurricane is dumping feet of rain on the Gulf coast of Texas is about as “take out the trash Friday” as you can get. The only thing missing is some kind of federal holiday to make this a three day weekend.

  2. orionATL says:

    i’m going to post this here, too.

    orionATLsays:

    August 25, 2017 at 10:34 pm

    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.

  3. Rugger9 says:

    A couple more details, reported occasionally:

    1. Arpaio is not only famous for the racial profiling that got him sideways with the federal courts (it’s the failure to observe a clear constitutional right), but in terms of doing the day job he was also not inclined to pursue rape cases, something like 3-400 of them not investigated. However, he did have time to send “posses” to look for Obama’s “real” birth certificate.
    2. The other is that a pardon like this is a dog whistle for all of those “constitutional sheriffs” around the country to double and triple down on their conduct. Also, forget being able to fight any asset forfeiture cases… It will be a gift that keeps giving.

    Thanks for the background, bmaz, it explains a lot.

  4. Rayne says:

    Agree that Great Orange Wig’s pardon of Arpaio was a sharp dig at the law, a bone to his white nationalist and racist base, and a Fuck You to the imminent victims of Hurricane Harvey because he put their needs second to Arpaio’s pardon. It was also a double Fuck You to the minority community including undocumented persons who are trapped in Texas, afraid to flee because Border Patrol is still watching for them along escape routes.

    But this pardon was something more. Check out this Twitter thread. It’s literally payback for both campaign support and for providing Great Orange Wig with additional bullshit birther nonsense.

  5. P J Evans says:

    Richard Painter, who was an ethics lawyer for Shrub, is condemning this, too. (I don’t remember hearing much from him back then – especially when Libby got pardoned.)

  6. CraneStation says:

    Trump will literally use the pardon power to obstruct justice in his own case. He is practicing using it as a shield to try and save his own ass.

  7. earlofhuntingdon says:

    Everything is about Donald, every interaction large or small, local or global, male or female, adult or child.  A pardon for Joe is a way to pardon Trump.  It’s practice.  Trashing the law and the courts is a way to protect himself as well as to build himself up with his shrinking base.

    The imagery is sadly brilliant.  Donald as an inside the Beltway counterculture regular guy, fighting for the law, the tough guys who enforce it, protecting broken people in broken towns  and saving “our” white christian male culture.  Aaron Spelling would pass on the script.

    Trump is a billionaire who would piss on his supporters faster than he would fire them, steal their homes, their jobs, their education, their health care.  He’s done it for decades; ask any former partner, worker, banker, customer. Donald is a prophet, a mirage maker who he will lead his waterless people into the desert, then drive home in his Bentley.  It’s a plot that would make Stephen King wake up in a cold sweat, but it’s real.

    Incidentally, trashing the law is standard goal of corporate lobbying, a great way to make money.  It’s also an example of the “thinking” that if a distraction is good, a bigger distraction is better, a outrageous distraction is the world’s best – just like Donald.  A distraction from the many things presidential that Donald Trump cannot do, and the many terrible things he does.

  8. earlofhuntingdon says:

    The flagrant racism in this pardon is not incidental.  It’s a roll call for support from every red-blooded white man and his auxiliary who opposed court ordered busing, who fought court ordered integration of schools, who hated court ordered affirmative action, who opposed integrated neighborhoods, unions and public universities across America.

    Donald is telling his base that the front seats on the bus are again reserved for them, even while he bumps up his ticket prices faster than the maker of the EpiPen.

  9. Mr. Beer N. Hockey says:

    Followed Arpaio’s vile career in Fred Woodworth’s highly recommendable The Match! for decades. The man and his actions over the years could not better represent the role of police as instruments (the knuckles) of Trump’s fearful class. It is more than enough to make one vomit.

  10. harpie says:

    Sally Yates‏Verified account @SallyQYates 

    With his pardon pen, POTUS reveals his own contempt for our Constitution, our courts, and our founding principles of equality and justice. 

  11. harpie says:

    Bmaz Retweets Walter Shaub:

    Every one of you WH staffers owns this disgusting unamerican racist pro-authoritarian gesture forever like it was tattooed on your forehead.

    Shaub on Twitter links to Bradley P. Moss at HuffPo: “Trump Pardoning Arpaio Should Raise Serious Alarms For The Russia Investigation-President Trump has sent out a subtle and implicit message to Flynn and Manafort: hang tight, I have your back.”
    Also links to this thread from Catherine Rampell‏Verified account @crampell 
     
    …don’t know if there’s anything there Bmaz hasn’t written about before, but just seeing it all [?] in one place [with lots of links] is horrifying.

  12. earlofhuntingdon says:

    I wonder if Sheriff Joe’s “Legal Fund” will crowd source enough for him to live on, after he pays his legal bills, or whether it will be so full that it will force him to run again for public office.

    • bmaz says:

      It is a scam, most all of his attorney fees to date have been paid by the county. And from books and other junk, Arpaio is not poor. And attorney fees are done now going forward due to the pardon ending the case and any need for appeal.

  13. Peterr says:

    In Topeka, a keyboard is furiously sending out an important email  . . .

    Mr. President, I just heard about your wonderful pardon of Joe Arpaio, that true hero of the movement to defend our borders. I know I speak for many in that community when I say ‘thank you!’ for this. Some are already screaming and whining, but what you have done is to replace injustice with true justice.

    If you are looking for a followup to this, to make a grand statement about your intentions with respect to the southern border, may I humbly suggest two things? First, wield that pardon pen again to void the unjust fine levied against me by an activist judge over a simple misunderstanding, and second, name me to replace General Kelly as the Secretary for Homeland Security. The former would be in keeping with the justice you gave to Sheriff Joe, and the latter would make you an even bigger hero to the border security people in this nation even as it drives your political enemies absolutely nuts.

    Your friend,

    Kris Kobach

    No action is expected until Friday, of course.

      • Peterr says:

        Given the quality of some of Kobach’s legal reasoning, it’s a coin flip whether he would know that. “But the pardon power is absolute! A judge gave me a big fine, and you’re saying a pardon can’t overturn the work of an activist judge? Impossible!”

  14. What Constitution? says:

    Between Trump’s pardon, the WH spox comment it was “pretty straightforward” and he doesn’t need to be familiar with nuances like the conduct of the guy being pardoned, Tillerson’s acknowledgement that Trump “speaks for himself” and emphasizing that Trump does not articulate “the American people’s values or the commitment of the American government or the government’s agencies to advancing those values and defending those values”, and the fact that Sheriff Joe is out there already talking about renewing his political career, it strikes me that maybe a President who insists he can pardon a crony for refusing to respect the constitutional authority of the Federal judiciary enforcing the laws of Congress and the principles of the Constitution is knowingly violating his constitutional oath of office.  If that ain’t a “high crime”, it’s certainly a “misdemeanor” in constitutional parlance.

    The power of the pardon granted to the President by the Constitution is subject to exercise by the president in accordance with the oath that allows him to be president:  to “protect and defend the Constitution of the United States”.  The pardon power is not a trapping of absolute monarchy.  Or, at least, it shouldn’t be.  This president agreed to conduct himself at a pretty straightforward base level of conduct, and he’s willfully refusing to do so in the most specific and direct way by pardoning this miscreant.

    • bmaz says:

      Excellent comment! Yes, agree.

      As you know, “high crimes and misdemeanors” is pretty much anything the House finds it to be, so, yes, this would certainly apple.

    • Evangelista says:

      To maintain a patina of “legality” Trump did need to have waited with his pardoning of Arpaio until the judiciary branch’s legal process was completed.

      Not doing this, or to put it actively, doing what he did when he did, Trump interfered with the Constitutionally assigned activities and responsibilities of the judiciary branch.  This violated separation of powers.

      In a Constitutionally constituted United States the use of prerogatives provided one branch of the government to thwart, or even only interfere in, the carrying out of responsibilities vested in another branch would be an impeachable offense.  The action constitutes a capital malfeasance.

      The allegation that Trump should have ‘divested’ of profit-making personal properties, to avoid “violating” “the emoluments clause”, but did not, is the most commonly heard stated reason for an impeachment action against him.  The reason and reasoning is extremely weak.  So weak as to be implausible, since, even if there were not numerous examples of U.S. Presidents who continued to manage properties and profit from the sales of productions from those, which productions gained ‘provenance’ values for the producers becoming Presidents, including Washington, Jefferson and Jackson, questions raised by the practice in the case of a sitting executive would be more appropriately resolved through civil action against the profits, not the executive:  Should the profits be property of, and paid to, the public trust, as gifts to the executive?

      In a Constitutionally constituted United States the granting of pardon by a President to stop (or estop) an in-process adjudication case would be a very much stronger (a real) cause for impeachment:  The effect of the action is to subordinate a branch of government Constitutionally created equal to the acting branch.

      It will be interesting to see if members of Congress demonstrating enthusiasm (real or politically expeditious) to impeach Trump will turn to the Arpaio pardon for genuine grounds.  Or if others take that cause up.

      There is, of course, that the United States of the early  21st century is not Constitutionally constituted, is a usurper-state, a government defined by an un-Constitutional imperial-form commercial law system created and imposed on the United States public by a ‘ruling-class’ of commercial interests, and that in this system there is ‘precedent’ for the Presidential Pardon action, and application, that President Trump (President in that government) has engaged in.  Of specific note in this regard is the President G.H.W. Bush “Christmas Surprise” pardon of persons engaged in clearly illegal encouraging, enabling, fomenting, supporting, directing, financing, training, arming “Contras” against the government of Nicaragua, and other “black-op” activities, at least one of whom became a Director of the CIA.  But there have been others.

      It is a quandary, or a quagmire.

      So, step right up, ladies and gentlemen!  Put your money on your favorite!  Your own Congressman or Senator?  Another?  Pick any one!  Over five-hundred to choose from!  Five-hundred seperate pools!  It’s Bingo on a Billion-Dollar Scale!

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