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What the Arpaio pardon reveals about Trump’s take on the rule of law

August 28, 2017 at 6:30 PM EDT
President Trump's Friday night pardon of former Maricopa County Sheriff Joe Arpaio -- convicted of defying a court order to stop targeting undocumented immigrants -- drew swift criticism, even from fellow Republicans. What makes the controversial pardon so noteworthy? John Yang is joined by Brian Kalt of Michigan State University to discuss its significance.
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MILES O’BRIEN: The presidential pardon for a controversial former Arizona sheriff is illuminating key aspects of President Trump’s approach to the rule of law.

John Yang has more.

JOE ARPAIO, Former Maricopa County, Arizona, Sheriff: You a resident?

JOHN YANG: Criticism of President Trump’s Friday night pardon for former Maricopa County Sheriff Joe Arpaio was swift and even came from fellow Republicans. House Speaker Paul Ryan’s said he doesn’t agree with this decision. Arizona Senator John McCain said it undermines Mr. Trump’s claim for the respect of the rule of law.

Ohio Governor John Kasich said Mr. Trump wielded his pardon authority as a political wedge.

GOV. JOHN KASICH, R-Ohio: The president has that power. I don’t agree with what he did.

JOHN YANG: Arpaio was awaiting sentencing after his July conviction for defying a 2011 court order to stop detaining people solely on the suspicion they were in the country illegally. The court said the practice violated the constitutional rights of Latinos.

Today, Mr. Trump defended the pardon.

PRESIDENT DONALD TRUMP: Sheriff Joe is a patriot. Sheriff Joe loves our country. Sheriff Joe protected our borders. And Sheriff Joe was very unfairly treated by the Obama administration.

JOHN YANG: The 85-year-old former DEA agent has long been a lightning rod for his tough stand on criminals and undocumented immigrants, which he talked about in a 2012 interview with the “NewsHour.”

JOE ARPAIO: I don’t just talk and say I’m going to arrest illegal immigration — immigrants. I do it.

JOHN YANG: He housed prisoners in tents beneath the blazing desert sun.

JOE ARPAIO: These guys are all convicted, regardless of critics. They are doing their time in the tents.

JOHN YANG: He made pink underwear part of inmate’s uniforms.

JOE ARPAIO: You know what? You don’t like it? Don’t come to jail. Very simple.

I’m here to endorse a great patriot.

JOHN YANG: The tough-talking sheriff was an early supporter of the tough-talking presidential candidate who shared the belief that Barack Obama wasn’t born in the United States.

PRESIDENT DONALD TRUMP: He’s the kind of guy we want on our team. He’s tough, he’s strong, and he’s smart. And he’s done an amazing job.

JOHN YANG: Last year, Arpaio was defeated in his bid for a sixth term as sheriff. The same night, Mr. Trump won the White House and the power to give Arpaio a presidential pardon.

We take a deeper look at this controversial pardon with Brian Kalt. He’s a Michigan State University law professor and the author of “Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.”

Mr. Kalt, thank you so much for joining us.

From your perspective as a constitutional scholar and professor of law, what make this pardon so noteworthy?

BRIAN KALT, Michigan State University: Well, it’s very unusual for a president to make a pardon this controversial this early in his term.

In recent history, presidents have waited until after the election. After the Ford pardon of Nixon, which probably cost President Ford the election, presidents have been very reluctant to use their pardon power.

And, again, when they have, they have waited until there aren’t really political ramifications for it.

JOHN YANG: But aside from the timing, is there anything about the nature of this pardon, what it was for, what Sheriff Arpaio was convicted of doing, that makes this sort of noteworthy?

BRIAN KALT: Oh, sure.

On the merits of the pardon, it’s very unusual for a president to step in and sort of cheer on someone for defying a court order like this.

JOHN YANG: And at his press conference, the president compared this, was defending this by noting the pardons from Presidents Clinton and Obama of drug dealers, of members of the Weather Underground, Puerto Rican separatists.

Are those fair comparisons, in your view?

BRIAN KALT: Well, there are a lot of differences.

Most of the examples that the president gave today were of commutations of sentence, right? These are people who were convicted. They were in prison, and they had the president shorten their sentences. That’s very different from a pardon, where the president is not only preventing Joe Arpaio from going to jail at all, but he’s also basically undoing the conviction entirely.

JOHN YANG: And, also, that Sheriff Arpaio’s appeals process hadn’t even begun yet or hadn’t even ended, for that matter.

Is that unusual for a president to step in at this point?

BRIAN KALT: It is fairly unusual.

I think a more conventional thing to do would have been to wait and see what sort of sentence came down. If he had wanted to appeal, let him appeal. Let the system work its way through.

But presidents have used the pardon power to prevent prosecutions, not wait until the conviction, until the sentencing is over. So, that’s — it’s not common, but it’s not unheard of.

JOHN YANG: But, also, the cases that the President Trump spoke of today, those were cases where people were convicted of breaking a law.

In this case, this is someone who was convicted of defying a court order trying to protect constitutional rights. Does that make a difference?

BRIAN KALT: Well, certainly.

I think it make as difference, because if the president is sort of intervening in an ongoing case, it’s a little different from the president saying, well, this person broke the law, but the sentence should be reduced or they have done enough time now. Without saying what this person did was OK, they’re saying the punishment needs to be reduced.

What President Trump did here was, again, basically endorse Joe Arpaio defying a court order, which is troubling from a separation of powers standpoint.

JOHN YANG: Brian Kalt from Michigan State University, thanks for joining us.

BRIAN KALT: Thank you.

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