Why does the pardon of Arpaio show contempt for the rule of law?

Question

Much of the criticism of Trump's pardon of former Arizona Sheriff Joe Arpaio has centered on the idea that this shows a disrespect for the "rule of law". For instance, John McCain said (as reported in the LA Times):

The president has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions.

But couldn't that be said about practically any pardon? Theoretically, every prisoner was convicted of properly enacted laws and according to our accepted judicial processes.

While I don't agree with this particular pardon, I don't see what makes it different from other pardons. In all cases, the President is essentially stating that he knows better than the courts and juries that convicted the individuals, or simply that he doesn't care what they said. Pardons are often done for political reasons, and that seems to be the likely justification for this one; it's very consistent with Trump's campaign promises regarding illegal immigration, since Arpaio was well known for being a fierce opponent of it. Pardoning Arpaio plays to Trump's base.

It seems like this pardon is being singled out simply because so few politicians on either side of the aisle agree with it. But what does that have to do with the "rule of law"?

And since the power to pardon is part of the Constitution, isn't it effectively included in the rule of law? How can exercising a legal power be a violation of the law?

EDIT: I understand that many people think this pardon was inappropriate, and agree with them. My question is specifically about why "rule of law" is being mentioned in the arguments against it, since the law specifically allows it.

Answer 1

tl;dr: Arpaio was sentenced for violating a court order, which ordered him to stop violating the law. In this case, a presidential pardon takes away any recourse the judiciary has, thus circumventing the separation of powers and thus the rule of law.

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Few people claim that the pardon was illegal. What people mean by "rule of law" in this case is that it was against the unwritten, but well established, procedure of pardons and an attack against the separation of powers.

Procedures and Reasons for Pardons

Specifically, the pardon violated - not legally binding - procedures because:

• Trump did not consult anyone at the Justice Department
• Arpaio did not request a pardon
• Arpaio was not sentenced yet

Additionally, the pardon is generally applied when one or more of these points apply:

• Facts of the case have changed
• The individual shows regret
• The individual served their sentence
• The sentence is seen as too harsh or unjust (compared to how it was seen when issued)

None of those is the case here. Arpaio is proud of his racist and criminal behavior, and wasn't sentenced yet, so nothing has changed since his sentencing.

Because of this, the pardon is perceived not as righting a previous wrong, or as mercy for a person showing regret, but as going over a judge.

Separation of Powers and the rule of law

In many democracies, state powers are separated into Legislative, Executive, and Judicial powers.

Rule of law specifically means:

the legal principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.

While the pardon itself may have been legal, Trump circumvented the checks the judiciary could exercise over the executive (of which Arpaio was a part of). The law that prevented Arpaio from his illegal activities can be considered bypassed; It wasn't the law that governed, but Arpaio. Trumps pardon of him - without any sign of guilt or wrongdoing - is a support of Arpaio's ignorance of the law, and thus in conflict with the principal of rule of law.

Martin Redish shows in the NYT why this pardon is an attack on the existing process, the separation of power, and thus the rule of law:

This is uncharted territory. Yes, on its face the Constitution’s pardon power would seem unlimited. [...] But the Arpaio case is different: The sheriff was convicted of violating constitutional rights, in defiance of a court order involving racial profiling. Should the president indicate that he does not think Mr. Arpaio should be punished for that, he would signal that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies.

Many legal scholars argue that the only possible redress is impeachment — itself a politicized, drawn-out process. But there may be another route. If the pardon is challenged in court, we may discover that there are, in fact, limits to the president’s pardon power after all. [...]

[I]f the president signals to government agents that there exists the likelihood of a pardon when they violate a judicial injunction that blocks his policies, he can all too easily circumvent the only effective means of enforcing constitutional restrictions on his behavior. Indeed, the president could even secretly promise a pardon to agents if they undertake illegal activity he desires. [...]

[I]f the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power.

Noah Feldman argues the same on Bloomberg:

This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution.

It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society. It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy [...]

But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.

Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.

An Arpaio pardon would express presidential contempt for the Constitution. [...] Fundamentally, pardoning Arpaio would also undermine the rule of law itself.

Additional reasons for outrage and meaning for future investigations

Most of the outrage is of course not (only) because of the contempt for the rule of law, but because this isn't the first time Trump has shown his support for racists and white supremacists. And even those that agree with Trumps endorsement of white supremacists might agree that Arpaio was not a very decent person by any definition.

Paul Krugman argues along those lines in an opinion piece in the NYT. He also gives an overview over Arpaios conviction and how this pardon might affect future investigations (and thus again attack the rule of law):

Joe Arpaio engaged in blatant racial discrimination. His officers systematically targeted Latinos, often arresting them on spurious charges and at least sometimes beating them up when they questioned those charges. [...]

Once Latinos were arrested, bad things happened to them. Many were sent to Tent City, which Arpaio himself proudly called a “concentration camp,” [...]

And when he received court orders to stop these practices, he simply ignored them, which led to his eventual conviction — after decades in office — for contempt of court [...]

Arpaio is, of course, a white supremacist. [...]

Trump’s motives are easy to understand. For one thing, Arpaio, with his racism and authoritarianism, really is his kind of guy. For another, the pardon is a signal to those who might be tempted to make deals with the special investigator as the Russia probe closes in on the White House: Don’t worry, I’ll protect you. [...]

Answer 2

First, while nobody doubts that the act is lawful, the right to pardon is controversial by itself. It is a power by which the executive "breaks" the separation of powers and changes a decision coming from the judicial power.

Doubly so if the reason for the pardon seems to be the self-interest of the person who issues the pardon, more than in the general interest (remember that the POTUS is supposed to work for all the country). Joe Arpaio was one of Trump's earliest supporters, and Trump took a page from Arpaio's anti-Latino discourse.

You can see some examples linked to Bill Clinton, for example/contrast. Gerald Ford's pardon of Richard Nixon was pretty controversial, too, even if now it is viewed more favorably.

Triply so if the pardon doubles as a show of Trump's support for racist groups, people and actions, and right after the Charlottesville polemic.

Quadruply so if the pardon benefits someone who has not recognized his errors and keeps saying that he was right in breaking the law.

But the main argument to single out this pardon is due to the nature of Arpaio's offense; he was charged with "contempt of court" because he refused to comply a 2011 ruling that mandated him to stop police practices that were found to be against constitutional rights.

So, it is not only pardoning someone who broke the law, but it is about pardoning someone who broke the law and ignored a court order to stop breaking it.

Critics argue that this is a signal for Trump supporters to ignore legal risks, in the safety that they could be pardoned themselves as long as they work for Trump. Apart from the racism angle, that is relevant because there are several ongoing investigations that could involve the POTUS himself, so could make the legal consequences of lying under oath less of a threat for the people being questioned.

Answer 3

To start with, the primary question:

Why does the pardon of Arpaio show contempt for the rule of law?

...isn't easily answerable as it's an opinion. There are opinions stating this, and there are opinions countering this. What may help clarify though is explaining...

While I don't agree with this particular pardon, I don't see what makes it different from other pardons.

...what the differences are. The big difference is simply context. Who the pardon was for, when it was given, and who gave it.

• Arpaio's entire legacy is one fraught with plenty of accusations of racial profiling.
• Just a week ago, Trump raised a lot of eyebrows with his inability to overtly condemn Nazis.

This explains the whole controversy...but not necessarily the 'rule of law' part.

Of course, the controversy, itself, is perhaps the main reason the 'rule of law' was brought up. It's simply a good phrase to insert into an opinion piece condemning the pardon.

The full quote from Senator McCain:

"The president has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions."

Emphasis is mine. Again, context is important here. I can't say exactly what McCain was specifically referring to, but it could have been the current race issues Trump has been entangled with, or it could refer to the fact that this pardon came so early in the judicial process of this case. Or perhaps both.

Further context can be found in that same article. Jens David Ohlin of Cornell Law School points out that this could be seen as a continue of Trump's general contempt for judges in general:

"Ever since the campaign and the beginning of his administration he's had a very contentious relationship with the judiciary and hasn't shown much respect for either members of the judiciary or the proper role of the judiciary within our constitutional structure,"...During the campaign, Trump called Chief Justice John Roberts "an absolute disaster" and "disgraceful,"

And a final bit of context from the President himself as to the timing of the pardon:

“Actually in the middle of a hurricane, even though it was a Friday evening, I assumed the ratings would be far higher than they would be normally,” he said.

I can only offer my opinion of that but it does seem that the President was specifically interested in viewership ratings. Which is an odd thing for a President to be dwelling upon. But adds further fuel for the argument that the rule of law isn't necessarily is primary focus here.

Pardons tend to happen well after the verdict, and tend to be quiet affairs. We have a president that has decided to use presidential pardons as a way to generate TV ratings. I can see how some would find that showing a lack reverence for the legal process and the decisions produced from it.

Answer 4

On "Last Week Tonight with John Oliver" on September 10, 2017, his main story was about Joe Arpaio. He mostly spoke about Arpaio's history, but it was of course bookended by discussion of Trump's pardon, since that prompted the piece in the first place.

Near the end of the piece (about 13:20 in the above clip), he said

that is why it's a slap in the face to the very rule of law itself

but the way he introduced it finally made sense to me. We're not talking about the legality of issuing pardons, which is of course lawful, but the offense for which Trump chose to issue the pardon.

The rule of law means that our public officials are expected to be bound by laws. In particular, law enforcement officials are supposed to be enforcing the laws as written and interpreted by the courts. Arpaio had many objectionable practices in his jails, mentioned in some of the other answers here, but these weren't what he was convicted of. He was convicted for ignoring a judicial order that said that his racial profiling practices against Hispanics must stop. Defying this ruling meant that Arpaio was ignoring the rule of law, when acting in a role where his primary job is to support the law.

Thus, when Trump pardoned Arpaio, and explained that he was doing this because Arpaio was wrongly convicted for "just doing his job", he was saying that Arpaio was correct in ignoring the ruling. That means that Trump is in favor of officials taking the law into their own hands, rather than following the rule of law (at least when the actions of that official are in accord with Trump's agenda). Either Trump doesn't understand the relationship between the law and the job of law enforcement officials, or just doesn't care when the law doesn't agree with his agenda. Considering his history of shady business dealings, I suspect it's mostly the latter. (Know who else doesn't care about the law when it conflicts with their desires? Criminals!)

The fact that Trump used a method that's perfectly legal to make this statement is somewhat incidental to it. Kind of like if someone gets up on a soapbox to make statements denouncing the right to free speech -- the fact that they're depending on the First Amendment to be able to make the speech doesn't contradict the fact that they're expressing disdain for it.

If Trump thinks that racial profiling is appropriate, the proper way to deal with it would be to work with Congress to make it legal (this would probably also require a Constitutional amendment, to override the Equal Protection clause). If he were to actually accomplish that, it might then be appropriate to pardon Arpaio, on the grounds that he was convicted for violating an obsolete law.

Answer 5

If I were president and I wanted to break the power of the courts this is how I'd do it.

There are only two interpretations; Trump's pardon shows contempt for the rule of law, or the judgement against Joe Arpaio shows contempt for the rule of law.

The courts are powerless against a president willing to pardon early and often, and Trump is communicating that he is willing. It will be hard now for the judges to block his immigration orders as he will be able to find people willing to ignore the courts.

Answer 6

There are many reasons to be angry about this pardon. Arpaio abused the office of the sheriff to arrest Hispanics without probable cause and incarcerate them without due process. Pardoning a white supremacist so soon after Charlottesvile sends a clear message to white supremacists that they have support from the president. Trump can attempt to deny this but white supremacists have seen a friend in Donald Trump since his campaign when he neglected to disavow the support of ex-KKK leader David Duke, and he has not taken any significant steps to convince white supremacists that he is not their friend. With this pardon white supremacists will be emboldened, as if Arpaio can get a pardon, why can't they?

You also have to consider that Arpaio supported Trump during the campaign, so Trump is actually handing out favors to political allies. This looks suspiciously like Trump is protecting his political allies from the law, allowing them to violate it with no fear of repercussions.

Here is a quote from Republican Senator Jon McCain on the Presidents pardon as well as the article I got it from:

The president has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions

http://www.latimes.com/nation/sns-bc-us--arpaio-pardon-20170826-story.html

Answer 7

Why is the Pardon controversial? Because Joe Arpaio is a controversial figure. He holds many views that are called racist. He was unapologetic in his actions, which makes him an unpopular person in the media. (this could be said to be objectively true as you will be hard pressed to find a positive Joe Arpaio story in NYT, LAT, CNN, NBC, etc. vs a host of negative stories. this is contrasted by the fact that the man was elected and re-elected many times)

Let's add to this that Arpaio is also an ardent supporter of President Trump, who is also unpopular in the media (again see above, Lots of negative stories, but the man won the election, winning the popular vote in many places where it was commonly thought by those same media outlets that he didn't have a chance)

Further adding to the controversy, the charge against Arpaio was contempt of court for failing to follow a court order. This is where we start to get in to several grey areas regarding the separation of powers. Contempt of Court is not something you get to have a jury of 12 type trial over. The judge says it, you go to jail. It can be used as a check against the executive because a judge can hit someone with an immediate, enforceable penalty. It's not often thought of that way, but it's there. Next we have the power of the Pardon, which is a check against both the legislative and the judiciary. If congress enacts an ordinance that is beyond the power of the veto, say against left handed basket weaving, the president could, in theory, pardon everyone convicted on such a ludicrous charge. He can also use it as a final check against that pesky Contempt of court thing.

Here is where it triggers all the sturm and drang. In many places, President Trump can do no right. "If he found a cure for cancer, he would be vilified for putting oncology doctors out of work". Likewise, Arpaio has been labeled a racist (regardless of evidence), a white supremacist (regardless of evidence), and is therefore "other". Anything positive between the two of them will immediately be attacked.

Now to address "contempt for the rule of law". This is pure opinion. It is a statement that has absolutely no basis in fact unless you can get in the head of the person and objectively examine their motives. We cannot, so anyone slinging that around just has an opinion, nothing more.

What is factual is that just as the court used a court order then a charge of contempt as a check on the executive (Sherrif Joe), another Executive (Trump) used a Pardon as a check against the Judiciary. The Court and president trump not only worked within the laws, but also the spirit of the laws and well within the spirit of the separation of powers. Very Very far from acting with "contempt" for the rule of law.

Sheriff Joe is the only one here who might be said to have acted with contempt for the law, and even that can be debated. He saw a bunch of laws regarding immigration that were getting twisted and ignored and as a duly elected officer of the law (executive) He went about enforcing them in the way he thought was best. His decisions were made with the goal of enforcing the rule of law, not in contempt of the rule of law. One could even make a case that Sheriff Joe was acting in the spirit of the Nuremburg War Trials, where "Just following orders" is no excuse, and one must follow their conscience instead.

The same reasoning that is being applied to Trump and Sheriff Joe to say that they have contempt for the rule of law can be applied to every single sanctuary city. It can be applied to those states who have "legalized" pot in spite of it being against federal law.

Finally, there has been talk about implications in a pardon over admission of guilt, or remorse, and so on. This one is fairly simple. Sherrif Joe, knows what he did. He does not deny that he did it. He thinks the Judge was incorrect about the law, therefore remorse and so on is unnecessary. This, at least, is pretty clear.

This is not an easy thing to reason through. In the end, unless you definitively know what was in the heads of Trump, Sheriff Joe, and the Judge who cited Sheriff Joe, all you can do is guess. All the Media Hype (both sides, mind you) is just that. Hype. If reporters are losing control of their bladders over this, they should be ignored at best, or at worst, cruelly mocked for their collective silliness.

Answer 8

It doesn't undermine the rule of law, any more than a couple of other high profile presidential pardons that do not appear to follow normal presidential pardon expectations.

Two of the most controversial:

Bill Clinton's pardons

The most egregious was billionaire Marc Rich. Much like Arpaio, Rich had not been convicted and wasn't serving a jail term. He was living in Switzerland at the time, a fugitive from tax fraud charges. What makes this particularly controversial is the money that went from Marc Rich to the Clintons after the pardon. Rich funded the Clinton Library, and Rich controlled companies hired Bill for some pricey speeches. Much as the Arpaio situation today with him being an early Trump supporter, one has to wonder why Clinton pardoned Rich.

Another questionable pardon by Bill Clinton that appears to erode the rule of law was Susan Mcdougall, who had been jailed on contempt charges for refusing to testify in the Whitewater investigation.

Gerald Ford's pardon of Richard Nixon

This one, in hindsight, was probably the wise thing to do, although it raised considerable ire at the time. Looked like a quid quo pro in getting Ford put in as VP - remember that Ford wasn't elected, he was confirmed by the Senate after the elected VP Spiro Agnew was forced out of office. In retrospect, prosecuting Nixon further wouldn't have accomplished anything useful, and Ford's rationale, so that we can put that behind us and move on, was correct.

So this current pardon, while not desirable, isn't necessarily without precedent. It seems to fall into the same sort of self servant motivation that some of Bill Clinton's pardons appear to originate.