The President’s Pardon of Arpaio Unethical, But Not Illegal

When the president with a sweep of his pen signed his signature to the pardon for former Sheriff Joe Arpaio, he was acting with the power of a king.

Despite what some academics have proposed the pardon power is about, when placed in the constitution at the time of its creation, the Founding Fathers intended it as the only instance an American president can act with the power of a king.

Lost almost entirely on this generation of Americans and the talking heads in our national media is the pardon by President Gerald Ford of Richard Nixon — who resigned the presidency to escape, quite likely, being impeached and or indicted and brought to trial and convicted or both for crimes he committed with regard to the Watergate scandal which he initiated.

President Ford’s reasoning in his official Pardon Proclamation to the nation:

“It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”

Ford used Article II, Section 2, of the Constitution to grant Nixon the pardon — which Americans were later led to believe was done to bring the nation together again.

Trump’s pardon of Sheriff Arpaio has been demonized by public officials in Arizona and across the land as being against the law.

Arpaio’s pardon, however, is the law as being constitutionally exercised by the American president — even if many public officials, law enforcement officials and elected public officials don’t care for the president.

The furor is palpable but largely misdirected like all public furor these days over public process or the lack of it.

Here is President Trump’s reasoning as expressed in the news media:

“The White House announced the pardon Friday evening in a news release that recounted Arpaio’s lengthy career of admirable service in federal and local law enforcement and called him a worthy candidate for a Presidential pardon.”

The national outcry of the pardon granted by the president runs contrary to the constitutional imperative that allowed him to grant it. This right is unequivocal and absolutely incontestable.

It very likely could not be accomplished by this president or any president had it been a pardon for a person who has committed a homicide — and no presidential pardon in our history has been granted to a person who committed such a heinous crime.

In studies of the presidential pardon system I wrote for the Boston Globe which appeared as well in George Magazine and on when the late John F. Kennedy, Jr. was publishing it and on NBC Boston, research revealed a pardon system that has no rhyme or reason — a pardon office that is perfunctory while the real power is with the assistant attorney general serving in the White House generally in charge of such things.

The fact of the matter, as I wrote in the Boston Globe in its Focus Section on October 27, 1996, is that the pardon is and was mainly intended for pals, pols, and patrons historically being able to get their records expunged.

Nothing has changed about this in the past 21 years.

In the present political environment, a proclamation such as President Trump’s pardon of Sheriff Arpaio will be analyzed and discussed ad nauseum. It will be and has already been vilified by those opposed to the president.

In the end, none of this distraction matters.

Since President George Washington first used the pardon to grant clemency to those involved in Shay’s Rebellion (which took place in Massachusetts) in 1795, every succeeding president has used the pardon to do as he saw fit.

President Carter granted pardons to Vietnam War draft evaders.

In 1992, President Bush gave Casper Weinberger, the Secretary of State who oversaw the Iran-Contra figures, a Christmas Eve pardon.

President Clinton’s pardon of Mark Rich (later investigated by James Comey) who fled the United States while under prosecution for tax fraud — he owed $48 million in taxes — was apparently given because Rich’s former wife gave millions to the Clinton Library Fund, among others.

Former President Carter called the pardon disgraceful.

But none of this matters.

No congress and no court can challenge a president’s pardon.

In this instance only the president acts, and when he does, he acts with the power of a king.

 

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