The Arpaio Pardon — Don’t Obsess about the Russian Investigation

It seems there are two likely responses to the Arpaio pardon: to use it as a teaching opportunity about race, or to use it to panic about the Russian investigation.

I’m seeing far too many people choosing the latter option, focusing on what Trump’s pardon of Joe Arpaio might do for the Russian investigation. That, in spite of the fact that Trump has already spoken openly of pardoning Mike Flynn, just like he did of Arpaio, to say nothing of his spawn or the father of his grandchildren.

The targets of the Russian investigation already know Trump can and is considering pardoning them.

But a pardon of them — at least some of them — is a very different thing than an Arpaio pardon. That’s because, for some of the crimes in question, in case of a pardon, Robert Mueller could just share the evidence with a state (usually NY) or NYC prosecutor for prosecution. It’s possible that accepting a pardon for Trump or Kushner business related crimes could expose those businesses to lawsuit, and both family’s businesses are pretty heavily in debt now.

Most importantly, a Paul Manafort or Mike Flynn pardon would deprive them of their ability to invoke the Fifth Amendment, meaning they could more easily be forced to testify against Trump, including to Congress.

Presidents implicated in crimes have used a variety of means to silence witnesses who could implicate them, but Poppy Bush’s Cap Weinberger pardon — the most recent example of a President pardoning a witness who could incriminate him — was not the primary thing that protected Poppy and Reagan, Congress’ immunization of witnesses was. Thus far, most Republicans in Congress seem determined to avoid such assistance, and Trump’s attacks on Mitch McConnell and Thom Tillis for not sufficiently protecting him probably have only exacerbated the problem.

I wrote a piece explaining why (in my opinion) George W Bush commuted Scooter Libby’s sentence, but never pardoned him: it kept Libby silent without adding any personal risk. If Trump were competent, he’d be making similar calculations about how to keep witnesses out of prison without making it easier to incriminate him. But he’s usually not competent, and so may fuck this up royally.

In any case, given that some Republicans (including both Arizona’s Senators) have made lukewarm objections to the Arpaio pardon, I’d imagine any pardons of Russian witnesses would meet more opposition, particularly if those pardons came before the 2018 elections. Add in the fact that sleazeball Manafort has no purported service to point to to justify a pardon, as Trump cited with Arpaio (and would to justify a Flynn pardon). The backlash against Trump pardoning witnesses against him will likely be far worse than the already existing backlash here.

Pardoning Arpaio was easy. Pardoning Manafort and Flynn and Don Jr and Kushner and everyone else who can implicate the President will not be easy, neither legally nor politically. So don’t confuse the two.

Meanwhile, Trump has just pardoned a man whose quarter century of abuse targeting people of color has made him the poster child of abuse, not just from a moral perspective, but (given the huge fines Maricopa has had to pay) from a governance perspective.

Like it or not, a lot of white people have a hard time seeing unjustified killings of people of color as the gross civil rights abuse it is, because when cops cite fear or danger in individual cases, fearful white people — who themselves might shoot a black kid in haste in the name of self-defense — side when them. Those white people might easily treat Black Lives Matter as an annoyance blocking their commute on the freeway.

The same white people might find Joe Arpaio’s tortuous camps for people of color objectionable, because those camps make the systemic aspect far more apparent. They’re far more likely to do so, though, if this pardon is primarily seen as Trump’s endorsement of systematic white supremacy rather than a test run to protect himself.

Moreover, white supremacy is something that will remain and must be fought even if Robert Mueller indicts Trump tomorrow. It was a key, if not the key, factor in Trump’s win. We won’t beat the next demagogue following in Trump’s model if we don’t make progress against white supremacy.

You can’t do anything, personally, to help the Robert Mueller investigation. You can do something to fight white supremacy. And if that doesn’t happen, then we’ll face another Trump down the road, just as surely as Sarah Palin paved the way for Trump.

The Arpaio pardon is an abuse, horrifying, yet more evidence of how outrageous Trump is.

But it’s also a teaching opportunity about white supremacy. Better to use it as such rather than cause for panic about the Russia investigation.

Related posts

emptywheel, You’re not the audience for the Arpaio pardon, cops are

bmaz, Some thoughts on the Arpaio pardon

 

 

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.

47 replies
  1. bmaz says:

    Fully agree. And have been saying this for a long time before the Arpaio pardon.

    Remove the 5th from these mopes, and they are all immediately on the hook from being unable to plead the 5th, and then are eligible for perjury/false statements prosecution, and it places Trump himself in a position for much expanded exposure for obstruction.

    Trump and McGahn may be that dumb, but Ty Cobb is not.

    By the way, isn’t it swell how nobody ever mentions the complete, total absence, of any discernible evidence of Don McGahn’s continued existence?

    • Anon says:

      Awesome! Empty Wheel is a rare case of so-called libertarians not complicit in fascism/racism. Liberty idealist groups and Free Speech Warriors like ACLU are concern-trolling everyone without political content when they sue  White Supremacists to hold  a violent rally in Charlottesville!

      I read empty wheel to see the latest antics of the billionaire class/fascists*. I didn’t expect she would seize this good opportunity to remind White people are actually the terror race in the language of petty  bourgeois.

      * “Fascism should rightly be called Corporatism, as it is the

      merger of corporate and government power” – Benito Mussolini

        • Anon says:

          Apologies. I was using a phone and it didn’t allow for a lot of proofreading and editing.I didn’t  read your comment at all and was not responding to you. The reply button of this site is so messed up on iPhone that it got me to respond to yours. Besides, I have little interest in “petty discourse”-as in petty bourgeois-of legal matters . It’s an expert job. But empty wheel explains the political content of  legal and natsec matters in a way that is helpful to the public. Also I think legal discourse is a waste of time compared to social movements and revolutions. So not interested in the technicalities and musings esoteric legal discussions. I read empty wheel for the political analysis of the law not the technicalities, although I presume her technical analysis must be good too because it gets mediocre white dudes so worked up as almost to dismiss her without debating…but that is just a guess.

          Anyway, here is what I wanted to say about empty wheel not you, Bmaz.Hope it helps you move beyond your pseudoscience.. psychoanalysis that is.

          1. Empty Wheel is an example demonstrating “Libertarians” don’t have to be fascist apologists under the guise of Liberty for All.

          2. I meant to say ACLU sued the state in Charlottesville so that spectacular White Supremacists can express their distaste for Jews and others who may or may not be “replacing them”.  You don’t sue the state when it does something good.  The lack of political content of ACLU activity is so gross given the high esteem they get from …you guessed it… the Petty Bourgeoisie.

          Now you maybe thinking why a communist sounding person might be reading Empty Wheel. Because. She gives a glimpse of the inner workings of the fascist state. And I quoted Mussolini about the equivalence corporatism and fascism to remind readers to believe people when they say who they are, not try to psychoanalyze them.

          • bmaz says:

            Oh, that was not psychoanalysis, just a comment on your comment. And it is still bonkers even after you supposedly cleaning it up.

            And, for the record, protectors of free speech such as ACLU, and many others, protect it for all, not just the “good” as you suggest should be the case. Because protecting only the “good” means speech is not really protected at all.

            What you call “gross” I call heroic and admirable. But I guess I am just a “Petty Bourgeoisie”. The kind that actually cares about “legal matters”. You know, the kind that maintains the legal framework to insure you have the right to come here and comment and express your speech.

    • emptywheel says:

      And there’s nothing you can do to prevent that, either, except push to make him more toxic to Republicans.

      • bmaz says:

        There is literally zero chance Mueller would try to indict Trump.

        Submitting a report that suggests impeachment is still currently on the outside of odds. Full on indicting of Trump now, or while in office, is laughable.

        Why do people even discuss this kind of pipe dream?

        • emptywheel says:

          I think an impeachment is more likely than you. But I agree. Zero chance Mueller indicts Trump. None.

          • emptywheel says:

            Adding, you don’t have to get to a Trump indictment for Trump to panic, because legal risk to Jared or Don Jr would be enough.

            • orionATL says:

              for ew and bmaz:

              but then a prez trump clearly involved in past financial crimes independent of “russia” – income tax evasion, business-oriented fraud, bribery, money-laundering, etc. – would still be liable afer his presidency providing statutes of limitation had not expired. right ?

          • Willis Warren says:

            What happens if Mueller finds out that the Moscow Hotel was conditional upon Trump’s getting rid of the Magnitsky Act and that Trump, through Felix Sater, signed off on it?

  2. dalloway says:

    Isn’t there another reason Drumpf would be idiotic to pardon Manafort, Flynn, Jared, et al?  Aren’t pardons invalid when sold or given in exchange for something of value — in this case, keeping Drumpf’s sorry ass out of jail?  And wouldn’t pardoning these clowns also be further evidence of obstruction and abuse of power that would head any articles of impeachment?

  3. earlofhuntingdon says:

    I agree that Trump is more vulnerable via threats to his children and son-in-law. Excusing them from liability for unlawful dealings with the Russians or from perjury or obstruction would require more strategy than Trump is capable of, and more patience and trust than he is known to extend, even to lawyers who might him or his family out of prison. He could well fuck it up.

    The greatest vulnerability Trump might perceive from Mueller’s investigation is to his businesses. They are built on secrecy, highly aggressive accounting and tax positions, and la force de Trump. Mueller’s investigation could imperil all three.

    Arpaio? I agree the issue is race, not just in the South or from neo-Nazis. The bigger worry is the racism from the thousands who protested busing in Boston, Cleveland, Chicago and LA. The thousands who felt aggrieved over some aspect of affirmative action. The thousands who resent the “wrong” people moving into their neighborhood or taking their jobs. That is, the long history of using racial resentment as a way to keep the “lower orders” fighting each other instead of communally acting against those who live off them rather than with them.

  4. Stephen Cobb says:

    “…Paul Manafort or Mike Flynn pardon would deprive them of their ability to invoke the Fifth Amendment, meaning they could more easily be forced to testify against Trump, including to Congress.”

    I’m possibly missing something here, but how would they be forced to testify? By the threat of contempt charges? I thought contempt is what Trump just pardonned Arpaio for (I am not a lawyer, nor do I play one on TV, and Ty ‘the lawyer not the base stealer’ Cobb is not a relative).

    Thanks…Stephen

    • SpaceLifeForm says:

      Note this started a decade ago. 6 years ago, Arpaio was convicted of civil contempt (not criminal contempt). But he flat out refused to do his fucking job as a LEO, and flat out refused to uphold the US Constitution.

      https://www.cnn.com/2017/08/24/politics/why-joe-arpaio-was-found-guilty/index.html

      Bolton’s decision arose from a finding of civil contempt by US District Court Judge G. Murray Snow in the racial-profiling case of Melendres v. Arpaio, first filed in 2007. Beginning in 2011, Snow ordered Arpaio to stop detaining people based simply on a belief that they were in the country illegally, rather than suspicion that a crime has been committed.

      Arpaio refused to comply, even though Maricopa County lawyers warned him about the magnitude of Snow’s order and advised him not to pick up people unless grounds existed for state charges.

      After the first order in 2011, Arpaio told various television reporters that he would “never give in to control by the federal government,” that he would not “back down” and “if they don’t like what I’m doing get the laws changed in Washington.”

  5. der says:

    Speaking out against avowed white supremacist speech and acts is acceptable and polite conversation among the white educated in my hell hole. Unspoken prejudice and bias should not be pointed to and called out when the act doesn’t fit the words. How gauche, how working class and low.

    Many times after watching Amy Goodman interview an author on Democracy Now I’ve gone to my library website to search out a books location and found that I had to reserve a copy. After watching her interview with Ibram X. Kendi about his book: “Stamped From The Beginning, The Definitive History of Racist Ideas in America” I go to the the library web site and find 8 of 10 copies available, renewing it was not a problem. I live in a middle class, educated county 65% white, 90% graduated from high school, 37% hold a bachelor’s degree or higher. Open minded and progressive is how most I know would described themselves. We only talk about the weather, but not climate change. Or we share gossip.

     

  6. Space:ifeForm says:

    OT: NSA pushback on 702

    Pretty much the same BS we have heard before. Alleged attacks prevented.

    Until any TLA proves their worth, none can be trusted.

    Section 702 saves lives, claims spying agency, while continuing to dodge critical question

    https://www.theregister.co.uk/2017/08/25/nsa_pr_campaign/

    “You promised that you would provide a ‘relevant metric’ for the number of law-abiding Americans who are swept up in the FISA 702 searches,” Wyden barked at Coats. “This morning you went back on that promise.”

    Coats responded: “What I pledged to you is I would make every effort to try to find out why we were not able to come to a specific number of collection of US persons… There were extensive efforts on the part of the NSA to get you an appropriate answer – they were not able to do that…”

    Wyden angrily interjected: “Respectfully, that’s not what you said. You said: ‘We are working to produce a relevant metric…'”

    “But we were not able to do it. Working to do it is different from doing it,” retorted Coats.

    [So they continue to work on stonewalling]

    [They need to show progress somehow. Otherwise this is the never-ending IT project that really is vapourware]

  7. Space:ifeForm says:

    OT: When secret legislation happens

    Note that it allegedly is for DC Metro area, literally, ‘The Metro’ subway system, but applies to adjacent properties. And, importantly, Federal property, and there are metric shit tons of Federal properties, close to the Metro lines and stations. The Metro is *very* large. So we are taking about DC, Virginia, and Maryland. Very, very many people that work for US Federal government or any subcontractor companies or front companies take the Metro if possible. It can be much faster than driving a vehicle, and cheaper. Note the Metro is very secure.

    This could actually be a good CI tool.
    But what is the definition of ‘adjacent’?

    http://www.zerohedge.com/news/2017-08-26/congress-quietly-passed-bill-allowing-warrantless-searches-homes-only-1-opposed-it

    A bill that will allow homes to be searched without a warrant was passed with overwhelming support by the United States Congress, and signed into law by President Trump—and it happened with no media coverage and very little fanfare.

    The text gives the Commission the authority to enter property near the Metro Rail System “without limitation” and without a warrant, for the purpose of “making inspections, investigations, examinations, and testing.”

  8. Rugger9 says:

    It could be a test run for seeing just how far Caesar Disgustus can go. Not only McGahn, but notice how nothing has been heard from Sessions. After all of his pontificating about the rule of law with respect to sanctuary cities, his silence is deafening this time around.

    I think C.D. is going to push the envelope and challenge the courts / Congress to reign him in. I’d asked before whether there was any precedent on presidential pardon decision limits. That might be worth a post for everyone’s benefit to see what can be done and what the defined rules are.

    Let’s also not forget the sovereign citizen and “constitutional sheriff” crowds as well, given that they do not recognize court authority. This is a green light to them as well to “requisition” stuff that belongs to other people.

    • SpaceLifeForm says:

      Probaby on Arpaio’s dime at this point,
      Trump not only saved him the 6 months in prison, but also the fine.

      Maricopa County should be off the hook at this point. The county legal staff tried to warn him, but he would not listen.

      Seems like plenty of people have tried to warn potus too. Some people just refuse to accept sound legal advice. Go figure.

      • bmaz says:

        I have tried, and tried to get this across: There was almost fucking ZERO chance Susan Bolton was going to sentence Arpaio to one measly day in incarceration, even home detention, much less jail. STOP with the “SIX MONTHS” baloney. Any fine was going to be nominal, at most.

        Please, let us not make people silly.

        The “county legal staff” does not have shit to do with anything. The county hired outside counsel for Arpaio years ago.

        • SpaceLifeForm says:

          So, if you are so convinced that Judge Bolton would have only given a wristslap to Arpaio (good behaviour? lawyers communicated?),

          then why the pardon at all?

          That implies that this pardon was just a message to the trump base.

          That Trump will hand out pardons like cheetos.

          • bmaz says:

            Well, I know Judge Bolton better than most, including Trump. But, and I think this was Marcy’s point, it was never about any peril to Arpaio sentencing wise, it was always all about signaling.

      • earlofhuntingdon says:

        There’s nothing to warn Trump about.  On these matters, unlike most, he’s fully informed and he understands.  So was Arpaio.

        Like Trump, Arpaio did what he did with knowledge and intent.  That’s the point and the reason for his conviction.  That’s also one reason Trump pardoned him.

        These crimes are not about ignorance or lack of intent, which would often negate the crime.  They are about the opposite – intentional wrongful conduct, engaged in without hesitation or remorse, and without the slightest intention to make right.  Indeed, Arpaio made clear he would persist in his crimes – conduct for which he would throw a Latino jaywalker into jail on bread and no water.

        The county will be on the hook for these amounts, not Arpaio.  It’s the taxpayer’s dime.  Arpaio, on the other hand, is a millionaire, famous for intimidating reporters who wanted to know how such a lowly public employee “earned” all that money.

    • bmaz says:

      Honestly, I  think for liability payout and other cost+fee payout including court time, that figure may be close to accurate.

      • SpaceLifeForm says:

        That was my point. The County should be now clean of the mess. Arpaio should be on his own now. Especially, as you mentioned, the County got him outside counsel. That says they wanted no mas. Poison. Hot Tamale.

        I can not imagine after years of this crap that County would provide Arpaio indefinite funding for outside legal help.

        Makes no sense.

  9. Bob says:

    Marcy – it is completely inconsistent to say that targets of Mueller’s investigation could face state prosecution and that a pardon would deprive them of the right to take the Fifth. If they face a threat of prosecution they can validly plead the Fifth.

  10. bmaz says:

    There is nothing in the least inconsistent about this if you understand the difference between jurisdictions and immunities.

  11. Rugger9 says:

    One thing that was a precedent from the Clinton witch hunt (as prosecuted by Kellyanne Conway’s hubby, no less) is that Presidents could be held accountable for actions before they became President. Silly Billy was forced to testify for that reason, even while trying to argue executive immunity and failing.

    So, if Mueller wanted to indict Caesar Disgustus on stuff like Soho and other possible peccadillos from before he declared he was running (some of which are in the Panama Papers), the GOP already gave him the foundation to do it. However, as a practical matter, I think bmaz and ew are correct that he won’t do it for the reason that it would give C.D. the ability to point to it as a witch hunt in a deflection move. Besides there are still other legal cases in play which could be just as useful filed on Trump U (the settlement was being challenged by one of the victims) and others.

    We still need the pardon rules post, though. As we should recall, Scooter Libby outed Valerie Plame but had his sentence commuted, not pardoned (Libby was pissed about it) in part to allow some sort of leverage against his singing about Darth “Fourth Branch” Cheney. Perhaps that is what C. D. has in mind, or Ty Cobb. There can be no loose ends.

    • lefty665 says:

      Bill was required to testify in a civil suit (brought by Paula Jones perhaps) because providing that testimony was held not to be a material impediment to his obligation to execute the office of President.  He committed perjury in that testimony which was his conduct while in office that the prosecutor went after. Then Monica showed up and they were off to the races.

      • bmaz says:

        I think you have some of the timing of this wrong. I also think the term “perjury” is far too easily bandied about on this issue. Disingenuous? Sure. Dishonest? Probably. “Perjury” though could have that ever been established to meet burden of proof in a criminal trial? No, not a chance in hell.

        It is what it is now. Depending on what the definition of “is” is.

  12. Bob says:

    Bmaz – read Murphy v Waterfront Commission, 378 US 52 (1964). One jurisdiction cannot compel testimony that might incriminate the witness in another jurisdiction.

    • emptywheel says:

      Fair point. But Manafort’s corruption is just backup to any question of collusion. Point being that Manafort might have an incentive to face it in DC bc he has a means of lessening the sentence.

  13. Kathleen says:

    We hear McCain, other Reps, former Presidents, FBI directors etc etc repeat “no one is above the law.”

    Who really believes this?

  14. Rugger9 says:

    I don’t recall seeing anything from the AZ Senators on this, nor any of the AZ reps outside of Grijalva.  One would think McCain, Flake, Jan Brewer, etc. would have had something to say about this.

    The Phoenix New Times did a summary of sins for Arpaio, which was reposted over at Digby’s joint Hullabaloo (scroll down under the Anime story, there are three posts, fairly long, above it as of now) with lots of links to PNT stories over the years.  I think Jeffress and Falwell Jr, as well as the rest of the evangelical RWNJs should be forced to explain, story by story, exactly how this is what Jesus would do.  It is also a good primer as to why he came onto the Government’s legal radar.

    https://digbysblog.blogspot.com/

    For Republicans willing to harrumph about alleged Clinton wrongdoing and lack of respect for the law, it’s curious who they honor.

    • bmaz says:

      For what it is worth, both McCain and Flake have issued statements. McCain’s actually decent, Flake’s pretty darn flakely, but both denounced.

      • Rugger9 says:

        When will Sessions be visiting the Congress again, i.e. for the budget?  WHile it is good both denounced, it is what they do that counts.

  15. lefty665 says:

    “white supremacy is something that will remain and must be fought even if Robert Mueller indicts Trump tomorrow.”  Yes, and there is opinion in the black community that America remains a racist society. It is not just the Nazis, Klan, alt-Right, Trump and Arpaio. It is the whole damn country.

    From Charlottesville”: “Systems of oppression are durable, and they tend to reinvent themselves…”This all stemmed from what—a statue? Until people’s hearts change, it’s not gonna matter,” he said. “You can leave it up, or you can take it down, but you’re gonna disrespect me with it up and you’re still going to disrespect me with it down. What difference does it make?”

    https://www.theatlantic.com/politics/archive/2017/08/black-community-charlottesville-response/537285/

     

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