By Andrew Jones, TYT Politics
President Donald Trump’s unorthodox, dysfunctional behavior and decision-making may lead him to violate a whole slew of new norms if he announces a pardon Tuesday night, as he has said he might, for former Arizona Sheriff Joe Arpaio. Legal analysts and Dept. of Justice guidelines reviewed by TYT suggest that granting a presidential pardon to the controversial former sheriff would go against virtually every recommended criteria the DOJ has for appropriate pardon candidates.
Trump is set to hold a rally in Phoenix Tuesday night, when he reportedly has been considering announcing Arpaio’s pardon. Arpaio was convicted three weeks ago of criminally disobeying a 2011 court order that barred him from arresting people solely on the suspicion that they were in the country illegally.
The 85-year-old’s sentencing is set for October 5, and he faces up to six months in prison. However, some legal analysts expect that Arpaio won’t spend a day in prison, even if he receives the maximum sentence.
Since Arpaio was convicted in federal court, he would need a pardon from Trump to avoid time behind bars. According to the Department of Justice’s pardon guidelines, “Under the Constitution, the President’s clemency power extends only to federal criminal offenses.” This rule allows Trump to give Arpaio, or anyone convicted of a crime in any federal court, any pardon he wants.
Clearly the former sheriff of Maricopa County would be receiving special treatment, since most presidential pardons are given to prisoners who spend at least half a decade behind bars. That’s because in order to request a pardon officially, a convict must have spent five years in jail after the date of his or her sentencing before filing for clemency, according to DOJ pardon guidelines. Then the filing is delivered to the Justice Department’s Pardon Attorney, who may take months or years to actually review a petition. After former President Barack Obama left office, over 10,000 petitions of either pardon or sentence commuting requests remained on Trump’s desk for him to make a decision on those cases.
But Arpaio has not filed for a pardon, so he is not among that massive backlog of petitions on the president’s table. Under normal pardon petition circumstances, the DOJ’s Pardon Attorney would obtain clemency cases from U.S. district attorneys who think a case merits a possible pardon. The Pardon Attorney would then review all petitions for executive clemency, investigate the cases and, then, “prepares a report and recommendation for submission to the president.”
The Justice Dept. meanwhile has the option to notify victims of the convicted about the pardon request. A pardon is normally “granted on the basis of the petitioner’s demonstrated good conduct for a sustained period of time after conviction and service of sentence.” In addition, a pardon petitioner should admit guilt, accept responsibility, and “be genuinely desirous of forgiveness rather than vindication.”
Arpaio’s case clearly doesn’t fit those standard clemency guidelines, as he has not expressed contrition for his actions, is appealing his conviction, and has blamed others for his violation of the court order.
Suggested criteria that do not appear to have been met in this case include:
- Consultation with relevant officials, including the prosecutor and judge.
- Giving victims a chance to comment on the proposed pardon.
- Consideration of the impact on victims.
- Restitution to the criminal’s victims.
The guidelines also set a higher bar for pardoning well-known criminals. “In the case of a prominent individual or notorious crime,” the guidelines say, “the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account. ”
Last week, Trump spoke to Fox News about possibly giving a pardon to Arpaio.
“I am seriously considering a pardon for Sheriff Arpaio,” Trump said. “He has done a lot in the fight against illegal immigration. He’s a great American patriot and I hate to see what has happened to him.”
The octogenarian told Politico on Monday that he didn’t know if Trump would give him a pardon. “I’ve been doing rallies with him many, many times, and sometimes things are done the last minute,” Arpaio said, reminiscing on being part of the president’s campaign stops last year.
Kumar Rao, a racial justice attorney for The Center for Popular Democracy, excoriated Trump for possibly giving Arpaio special treatment.
“Such a brazen act would be befitting of the shameful morals and ugly histories of both these men,” Rao told TYT. “Joe Arpaio was found guilty by a federal judge of wantonly ignoring the court’s direct orders striking down racist and unconstitutional policing practices in Arizona. With thousands of legitimate petitions collecting on his desk, Trump’s pardon of a political ally in Arpaio would be a disgraceful act that deeply undermines the rule of law and serves to establish a new monument to white supremacy.”
Prominent progressive Arizona congressman Raul Grijalva (D) has been a staunch critic and political adversary of Arpaio for years. He expressed on Twitter repeatedly his disgust with a possible pardon from Trump. “I’ll be in Phoenix on Tuesday night to protest Trump’s inexplicable defense of white supremacy and an expected pardon of Sheriff Joe Arpaio,” he wrote last week. Grijalva then added on Monday, “A Trump pardon of Joe Arpaio would also be an endorsement of the racist ideals he represents #NotoJoe. We will send a clear message to the rest of the country that Arizonans stands [sic] to Trump’s message of hate & intolerance with peace & unity.”
Arpaio indicated that he would not be attending Trump’s Phoenix rally. “I haven’t been invited,” he told multiple news outlets.