Much from the carnival atmosphere at President Trump’s August 23 rally in Phoenix might have looked very familiar - a sea of red “Make America Great Again” hats, the ever-present wall, unsubstantiated attacks on the media, veiled and not-so-veiled swipes at political opponents, a whole lot of bluster that verges on falsehood, and of course this guy.
However, no single moment at the Phoenix rally provided a clearer window into everything that is destructive about the president’s attitude toward the rule of law than his brief mention of a possible pardon for former Maricopa County Sheriff Joe Arpaio.
First, the president once again failed to demonstrate his grasp of one of the most serious aspects of his job by asking the crowd, “Do people in this room like Sheriff Joe?” Cue thunderous applause. The president in that moment looked and sounded less like Commander in Chief, more like an opening act forced to stall at a rock concert.
The pardon power, one of the handful of powers explicitly given to the president by Article II of the Constitution, is ordinarily exercised in light of the discovery of new or mitigating evidence that demonstrates a wrongful conviction, or if the passage of time has established an individual’s rehabilitation. As Supreme Court Justice Oliver Wendell Holmes wrote in 1927, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.”
In addition, the president only exercises the clemency power after rigorous analysis of the particular case by the Department of Justice’s Office of the Pardon Attorney. This process culminates in a formal recommendation on the case by the Deputy Attorney General.
Nowhere in this process ― one that considers incredibly sensitive questions of mercy, justice, and often public safety ― is there room for the president to reduce the matter to a call-and-response chant at a nakedly political event. The lightness in the president’s attitude toward a possible pardon continued later as he teased that he could potentially pardon Arpaio (“I think he’ll be just fine, OK?”), but simply wouldn’t at the moment. The exercise of solemn responsibilities is not reality television, and any reasonable president would stop treating it as such.
Next, the president diminished the seriousness of Sheriff Arpaio’s criminal offense by asking the crowd, “So, was Sheriff Joe convicted for doing his job?”
No. Sheriff Arpaio was convicted - based on the testimony of his former associates - of criminal contempt of court, which is an act of disobedience toward the judicial branch of government, or an interference with its orderly process. For eighteen months, Sheriff Arpaio did exactly this by defying a federal judge’s order that he and his deputies stop targeting Latino drivers.
Here, it is telling that the president has publicly regarded Sheriff Arpaio’s conviction in the manner in which he has. Despite his long history, Sheriff Arpaio has not been convicted here of a civil rights or immigration offense. He has been convicted of impeding the function of our judicial system. And he seems to have the president’s blessing. The suggestion that Arpaio was convicted merely for “doing his job” is a statement inherently targeted at undermining trust in one of our branches of government.
Expressions of disregard for the independence and integrity of judicial and legislative process is nothing new from President Trump. He has regularly attacked the integrity of federal judges who have ruled against him. More importantly, the president’s now-boiling feud with Senate Majority Leader Mitch McConnell started, in part, over McConnell’s failure to intervene in any number of investigations into Russian interference in the 2016 Presidential election.
This is not normal. For more than two centuries, presidents and Congressional leaders have tussled as each side has attempted to assert its authority as a coequal branch of government. The president here is not simply challenging McConnell’s failure to pass major legislation as any president might; he is demonstrating a dangerous disregard for the principles of separation of powers and the rule of law.
Finally, and sadly, the president has found kinship with Sheriff Arpaio over the fact that the Sheriff has, like the president, built a brand based on stoking racial animus and playing into deep nativist fears of a segment of the population. The Sheriff and his associates have been criticized (and sued) over the years for, among other things, sending individuals to solitary confinement who couldn’t speak or understand English, referring to inmates with ethnic slurs, allowing roundups that amounted to racial profiling, overseeing a jurisdiction in which Latino motorists were four- to nine-times more likely to be pulled over in traffic stops (one lawful Latino resident having been pulled over for not using a turn signal and spent 13 days in jail before his case was dismissed), challenging the legitimacy of the President Obama’s birth certificate (sounds familiar?) and on and on.
Likewise, the president has continued to show a similar willingness to speak directly to ugly sentiments within some Americans, as was on full display last week following the events in Charlottesville. We now know that this has been intentional. Former Trump strategist Steven K. Bannon, when discussing the campaign’s decision not to denounce white nationalism, was quoted as saying “[w]e polled the race stuff and it didn’t matter.” The potential pardon of the Sheriff is bad enough. That the president now seems willing to ignore the law in order to continue to feed a racially-motivated political narrative is all the more troubling.
It should go without saying that elections have consequences, and the president should be free to exercise the duties of his office in the manner he sees fit. However, here the president is not simply taking a possible policy action with which reasonable minds can agree. He is disregarding and poisoning some of the core principles that, well, make America great.