Why the Arpaio Pardon Matters

The president chose to pardon a public official using state power for racist ends.  

Brian Snyder / Reuters

Presidents issue pardons for a wide variety of reasons. The highest-profile pardon cases, though not the most numerous, are political:

The first President Bush pardoned several officials who took part in the Reagan-era “Iran-Contra” affair, which involved the covert sale of arms to Iran to fund right wing rebels in Nicaragua. These included the former secretary of defense, Caspar Weinberger; the former national-security adviser, Robert McFarlane; and a former State Department official, Elliott Abrams. Gerald Ford issued the single most significant politics-related pardon: that of his predecessor, Richard Nixon, who had resigned as president to avoid the inevitability of being impeached. Jimmy Carter pardoned Vietnam-era draft-law offenders as a class.

In 1971 Richard Nixon pardoned the one-time Teamster boss Jimmy Hoffa, who had been convicted of jury-tampering—and who went on to support Nixon in the 1972 election, and then vanished a few years later. Bill Clinton pardoned his brother, Roger, who was doing time on a cocaine charge—along with a number of former Republican and Democratic politicians convicted on a variety of offenses, plus the financier-and-tax-evader Marc Rich, plus Patty Hearst. Most of Barack Obama’s pardons were for people serving long sentences for nonviolent drug (or related) crimes. Just before he left office Obama commuted the sentence of (as opposed to formally pardoning) Chelsea Manning, who had been imprisoned for leaking classified information about U.S. military activities. Without the commutation, Manning might not have gotten out until 2045.

It’s a mixed bag.

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Donald Trump’s pardon of ex-Sheriff Joe Arpaio stands out in this list for several reasons. One is the timing (as David Frum explains here). With certain big exceptions—Ford’s pardon of Nixon one month into his term, Carter’s Vietnam pardon on his first day—presidents have generally waited until late in their term to issue pardons. Another was procedure. Although the final choice is of course the president’s, usually the Justice Department’s special pardons division prepares an advisory review of the merits of each case. This time Trump apparently just blasted ahead. Usually the recipient of a pardon has either begun serving time or has exhausted his or her appeals. (Not always—the Nixon pardon was to preempt any criminal proceedings before they might get started, and Caspar Weinberger had been indicted but had not yet gone to trial.) In this case, Joe Arpaio had been convicted, but appeals had not even begun.

But the main difference was the nature of Arpaio’s crime. While he is not the first official whose offense involved abuse of public powers—from Nixon on down, others fit that category—his is the first case I’m aware of where someone is pardoned for using state power toward racist ends.

That description of Arpaio’s crime may sound tendentious, but it’s what his conviction amounts to. For details, I very highly recommend a Twitter chronicle put out last night by Phoenix New Times, which has been covering Arpaio for two decades. Over at least the past decade, state and federal judges—most of the latter appointed by George W. Bush—have been criticizing Arpaio and his practices, and warning that they violate a range of anti-discrimination laws. In 2008, one Bush-appointed federal judge, Neil Wake, ruled in favor of the ACLU, which had claimed that Arpaio’s jailing practices were unconstitutional and abusive. Another Bush appointee, federal judge G. Murray Snow, ordered Arpaio to cease-and-desist racial profiling practices, and referred him for criminal prosecution when he refused to obey. In the Phoenix New Times account you’ll see links to a lot more.

This was Arpaio’s practice. It’s among the reasons that the voters of Maricopa County turned him out by more than a 12-point margin last fall, in the same election where they voted for Donald Trump by a margin of four points. And it is what Donald Trump has called “just doing his job” and has pardoned Arpaio for.

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The pardon is damaging for both immediate and longer-term reasons. The immediate significance is that the United States is in the middle of disputes for which Joe Arpaio is a precise and destructive symbol. Across the country, police units are under scrutiny, or are avoiding it, for their use of deadly force on civilians, and the fairness with which they use it on white- and non-white subjects. Across the country, Latino groups in particular are on the alert for raids and excesses by newly energized local law-enforcement agencies and federal immigration officials. At just this moment, Donald Trump has chosen to pardon a man convicted of violations on both fronts: The units he commanded were needlessly violent and abusive toward civilians, and they based too many of their decisions about the use of force on the subject’s race.

The longer-lasting problem is that the nation is wrestling once again with its founding injustice: the unequal application of state power, on differential racial grounds. That was the essential logic of slavery, and after it of Jim Crow and legalized segregation. Joe Arpaio is a symbol of using state power to maintain racial advantages and disadvantages. If you think this is overstated, please read the New Times account and the many references it links to, or this report on Judge Snow’s findings.

And at this moment, in these circumstances, this is the man Donald Trump has chosen to praise, and to protect. The symbolism is exactly as clear as if Lyndon Johnson had gone out of his way in the 1960s to pardon Southern sheriffs or mayors who were intimidating civil-rights protestors. But of course Lyndon Johnson didn’t do that. It would have sent a dangerously bad message, a message like the one Americans have just received from Donald Trump.

Update: An astute reader points out one complication in my statement that the Arpaio case was the first time someone was pardoned for “using state power toward racist ends.” What about — wait for it — Jefferson Davis, former president of the Confederacy? He was pardoned by none other than Jimmy Carter, and during the time when I was on Carter’s White House staff.

That is an intriguing case, but I think its full context underscores the cruelty and divisiveness of what Trump has just done.

For one thing, Carter was signing a Congressional resolution recommending that “full citizenship rights” be restored to Jeff Davis. He wasn’t just going on his own, like Trump. For another, Carter presented the decision in terms very different from Trump’s. (Yes, this is the kind of signing-statement that my speechwriting colleagues and I would have been involved in.) You might compare the tone of Carter’s statement with  Trump’s exultation about his friend Sheriff Joe:

In posthumously restoring the full rights of citizenship to Jefferson Davis, the Congress officially completes the long process of reconciliation that has reunited our people following the tragic conflict between the States. Earlier, he was specifically exempted form resolutions restoring the rights of other officials in the Confederacy. He had served the United States long and honorably as a soldier, Member of the U.S. House and Senate, and as Secretary of War. General Robert E. Lee's citizenship was restored in 1976. It is fitting that Jefferson Davis should no longer be singled out for punishment.

Our Nation needs to clear away the guilts and enmities and recriminations of the past, to finally set at rest the divisions that threatened to destroy our Nation and to discredit the principles on which it was founded. Our people need to turn their attention to the important tasks that still lie before us in establishing those principles for all people.

Bonus update: Other readers have pointed out that in 1868 Andrew Johnson granted “Full Pardon and Amnesty for the Offense of Treason Against the United States During the Late Civil War,” which of course also involved the use of state power toward racist ends. This actually strengthens the case against the Arpaio pardon—Andrew Johnson was an abysmally bad president, this decision was one of his many ways in which he empowered the post-Civil War white resistance in the South—but it might be more precise to say that Trump’s decision is the worst of its sort in nearly 150 years.