Why Trump’s Arpaio pardon is different

When President Trump defended his pardon of former Maricopa County Sheriff Joe Arpaio on Monday, he was quick to put his use of this unique presidential power into historical context.

President Clinton pardoned Marc Rich, the hedge fund manager who fled the country to evade prosecution for tax evasion and doing business with Iran during the hostage crisis. (Mr. Rich’s wife had donated hundreds of thousands of dollars to the Democratic party.) President Obama commuted the sentences of Chelsea Manning, who leaked troves of military and diplomatic secrets, and Oscar López Rivera, a Puerto Rican militant found guilty of planning acts of sedition.

The list goes on. Teamsters’ boss Jimmy Hoffa, Iran-contra defendants, Vietnam War draft-dodgers, and even President Nixon himself have received presidential pardons. The power of presidential pardon is “something quite extraordinary,” says Brent Wible, a former senior member of the Office of the White House Counsel in the Obama administration.

Yet Mr. Trump’s exercise of mercy towards Mr. Arpaio last week was even more extraordinary, many legal experts say.

First, Arpaio was convicted of contempt of court, meaning that his crime was ignoring a judge’s order. In offering a pardon for that crime, Trump risks undermining the authority of judges and integrity of rule of law. Moreover, in America’s separation of powers, the executive branch is tasked with enforcing the rulings of the judiciary. The Arpaio pardon raises questions about whether the Trump administration is willing to do this.    

“What’s different here is, this prosecution came from the judiciary as a way of maintaining its authority in compelling an individual to comply with their orders,” says Paul Charlton, a former United States attorney in Arizona. “A willful disregard of the judiciary’s orders has to have ramifications, they have to have some kind of deterrent effect so others will know, if they choose to violate the federal court, there’s a risk.”

“So what the president has done is diminish and trivialize the authority of the judiciary,” adds Mr. Charlton, now a partner at the law firm Steptoe & Johnson in Phoenix. “The judiciary as a branch of governance does not have its own police force, it doesn’t have an army, it has no way of enforcing its order without relying on the executive branch.”

The charges against Arpaio came from federal judges appointed by President George W. Bush. In 2008, one found that…

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