Pardon Me

President Trump is in the news again (of course!), this time for issuing a controversial pardon of former Arizona sheriff Joe Arpaio.  Arpaio had just been convicted of criminal contempt for knowingly violating a court order requiring his office to stop targeting Latino drivers — a misdemeanor that carried a maximum sentence of six months in prison and a fine.  Less than a month after the conviction, and before Arpaio was formally sentenced, President Trump pardoned him and has explained that he felt that Arpaio was treated unfairly.  The pardon has been strongly criticized by a number of groups, and polls show it isn’t very popular with the American people.

The power to pardon is one of the most interesting, unilateral, and absolute powers possessed by the President of the United States.  It’s also one of the powers that is most likely to provoke criticism — except when the President uses that power to pardon the turkey presented to him for his Thanksgiving dinner.  Through the pardon power, the President has the ability to override the decisions of the judicial branch of government and of prior administrations who decided to prosecute the individuals who are pardoned.  The President’s power to pardon was first established by George Washington, who pardoned two men convicted of treason and sentenced to hang for their role in the Whiskey Rebellion, and over time it has been institutionalized — and used in ways that appear to be unseemly.  President Clinton’s last-minute pardon of fugitive Marc Rich, who had been indicted for racketeering, trading with the enemy, and evading income tax and then fled the country for 16 years, was mired in allegations of intrigue, back room deals and campaign contributions that made it look like the pardon power was for sale to the wealthy.

Trump’s pardon of Arpaio is unusual, for coming so soon after Arpaio was convicted and so early in Trump’s term in office.  Because the pardon power tends to  be controversial, Presidents typically wait until the end of their term in office, as President Clinton did, to issue pardons, so they can’t be held accountable by voters.  Trump also acted without following the advice of the Department of Justice unit that has been established to review and recommend pardons — but of course that is the President’s prerogative, as President Washington established more than 200 years ago.

The ability to pardon puts a tremendous amount of power in the hands of one man.  With President Trump’s mercurial temperament, we can reasonably expect to see that power used in new and different ways while he remains in office.  At least Trump acted in a way that will allow voters to consider his pardon decision as they decide whether to vote for him, assuming he chooses to run for reelection.  And who knows?  With President Trump being who he is, perhaps he will break with precedent on that turkey pardon, too.

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