Don’t be sensational about Donald Trump pardoning Sheriff Joe.
Leading up to Friday, commentators across the country vastly overstated the significance and nefariousness of a pardon for Joe Arpaio, a staunch Trump supporter and controversial illegal immigration sheriff.
Among those rushing to hysterics was Senator Kamela Harris of California. Harris on Wednesday tweeted that Joe Arpaio should not be pardoned because he “committed a crime.” (Yes, Senator Harris, that is one of the conditions precedent to receiving a pardon.) Unfortunately, Harris is a prime example of how lots of Americans don’t know much about presidential pardons.
Like Senator Harris, many want the public to view Arpaio’s pardon as a campaign reward or a free pass to break the law for Trump supporters. Let me reassure you that there is not cause to be alarmed in this case.
The Senator’s tweet came on the heels of evidence that President Trump would pardon the sentence of Joe Arpaio, more commonly known as “Sheriff Joe” for his bold immigration position during the Obama administration. Arpaio was found guilty of criminal contempt in U.S. District Court.
President Trump implied at his Arizona rally, outwardly retweeted this and said this to Fox News that he was considering a pardon for Joe Arpaio. Arpaio, who was scheduled for sentencing in October, received a pardon from the president on Friday.
In the age of Trump, many are quick to condemn his actions as sinister, cronyism, authoritarian. However, closer examination of presidential pardons reveals an odd history and constitutional framework worthy of scrutiny and dubious utility.
The presidential power to pardon resides in Article II of the constitution. The president has the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.“ The debate at the constitutional convention reveals that the Framers wanted to provide the presidential pardon as one mechanism to heal the country after insurrection.
In the Federalist Papers, eight-five policy circulars printed during the ratification of the Constitution to color debate on the document, Alexander Hamilton was a fierce advocate for the presidential pardon writing that it should be exercised under “benign prerogative” utilized “as little as possible.” Hamilton worried justice would “wear a countenance too sanguinary and cruel” for those individuals of “unfortunate guilt.” He was sympathetic to arguments regarding treason, a crime against the “body of society”, which he counseled could be left to the legislature to ratify a presidential pardon in this instance. Overall, his view of presidential pardons was that they are a “golden opportunity” under the discretionary powers that could be used infrequently to serve the public good.
There are many counterarguments to Hamilton. Virtually all anti-federalists expressed concern that presidential pardons were a carryover from England and would merely rejuvenate an aristocratic class and reinstate monarchy by another name. If not exercised with benign countenance, presidential pardons have no check other than impeachment. This check, however, carries with it no weight when in the modern convention of presidential pardons, the president typically pardons during lame duck.
Presidential pardons also undermine legitimate outcomes in judicial proceedings. Hamilton’s argument that pardons could correct “unfortunate guilt” at its core reflects the fact that the individual has in fact been found guilty in a court of law. On balance, granting the president a power to wipe clean judicial determinations in federal court on its face seems suspect. Despite intense debate, the Framers left the pardoning power to have wider latitude.
Most presidents had a vision that formed the foundation of their use of the pardon. Washington and Grant pardoned to unify the country from divisive war, Wilson and F.D.R. pardoned to forgive from transgressions during wartime, Obama and Bush exercised pardons to give second chances.
Throughout history, the pardoning power has been used sparingly with some exceptions. Most presidents average above two hundred pardons. Some presidents vastly exceeded this average by releasing individuals under various historically exceptional circumstances. President F.D. Roosevelt pardoned over 1,500 individuals for violations of the Espionage Act and Selective Service Act. President Grant pardoned over five hundred Confederate officers. President Truman and Ford both pardoned large numbers of individuals for draft dodging and protest-related convictions. Post wartime saw large spikes of pardons, but the average presidency pardoned few individuals.
Despite most presidents pardoning small numbers of convictions, some pardons carried tremendous public controversy. President Woodrow Wilson famously pardoned editor George Burdick on a contempt conviction for failing to reveal his sources for his publication. Following Watergate, President Ford pardoned President Nixon to get out from behind the giant specter shrouding his presidency. President Clinton pardoned Marc Rich, husband of a major Democratic donor, who was indicted for over dozens of federal financial crimes in relation to the Iran oil embargo. President Obama commuted the sentence of former U.S. Army soldier turned transgender rights activist Chelsea Manning for espionage. In times of pardon, one party typically applauds the president’s gravitas and grace, while the other harkens the pardon to an excess of presidential authority and abuse.
President Trump has given his first pardon and has begun to receive the same treatment.
Here (http://www.businessinsider.com/trump-pardons-joe-arpaio-reactions-2017-8) and here (https://www.washingtonpost.com/news/monkey-cage/wp/2017/08/26/why-trumps-pardon-of-joe-arpaio-isnt-like-most-presidential-pardons/?utm_term=.c59e0708cffe). Yet, one pardon doesn’t define a presidency and if there is debate, it should be on the scope of presidential pardons and not on individual pardons. Drawing moral equivalences between criminality is nearly impossible.
There is little doubt that presidential pardons have a contentious, storied history. Controversial pardons counsel restraint from the executive and avoid the excesses and abuses of power that Americans worry about when their party is out of power. From unjust or unfair pardons, the American public has the opportunity to debate the utility of presidential pardons. It’s a debate that touches on justice, fairness, restraint, and redemption. It’s a debate we should have.
But, as with many Trump actions that fall within the norm of past presidencies, the media and others will still sound the alarm of abuse and indiscretion. People love to rush to hysterics over discretionary powers when Trump uses them.
Don’t.