At a rally last night in Phoenix, Arizona, President Trump strongly implied that he plans to exercise his constitutional right to pardon controversial former Sheriff Joseph Arpaio.
Some aspects of this now likely decision are no surprise. Others are worth noting, as they challenge traditional understandings of the clemency power.
{mosads}First, if it comes soon, Trump would be acting relatively quickly to exercise clemency, at least, when compared to his recent contemporaries. Bill Clinton, George W. Bush and Barack Obama all waited over a year and a half before pardoning anyone.
Much like George H.W. Bush, Trump would act after only about seven months. This is a slight variation from the modern practice, but in and of itself is not novel. Presidents can exercise clemency at any point in their terms, or not — it’s entirely up to them.
Second, if Arpaio becomes the first recipient of Trump’s presidential mercy, he would not be, as has often been the case recently, a relatively anonymous person who committed a non-violent offense many years ago. Arpaio is a celebrity, and his federal conviction is fresh. Clemency under these circumstances is unusual – Arpaio has not even been sentenced yet, and there’s been no indication that his case has been reviewed in some capacity by the Department of Justice’s Pardon Attorney’s office.
On a related note, the fact that Arpaio’s situation has not received the usual level of official scrutiny that clemency cases typically receive may indeed go against a norm, but it does not violate any law that binds Trump’s hands. The president may, but does not have to, follow Justice Department guidelines that, on their face, require applicants for a pardon to wait five years from the date of their conviction to even apply. Clemency is a constitutional power that the president can exercise on his own whim, whether there is a timely clemency application and a thumbs-up from the Pardon Attorney or not.
Finally, perhaps the most unusual aspect of the Arpaio pardon concerns Trump’s likely reasons for pardoning him in the first place. Traditionally, two broad rationales have motivated most clemency decisions: showing an “act of grace” toward an individual, or acting for the benefit of the “public welfare.” Both have been recognized as legitimate motivating factors since George Washington pardoned the Whiskey rebels.
At 85 years old, the former lawman seems unlikely to actually go to jail. It is possible that an Arpaio pardon could be rooted primarily in a concern for mercy. However, Arpaio is a vocal supporter of the president and someone who is popular with the president’s base, so another interpretation would be that the pardon is really aimed at rallying Trump’s supporters.
The other rationale for clemency is that it somehow served the “public welfare” by, for example, defusing societal unrest with an offer of forgiveness. Presidents have used clemency to commute the prison sentences of political leaders like Eugene Debs and Marcus Garvey in order to quell uneasy supporters. Similarly, Presidents Abraham Lincoln and Andrew Johnson issued a series of Civil War-era amnesties aimed at bringing the country back together.
The latter group of pardons served to unite the country and help it to move forward. In the wake of Charlottesville, President Trump must carefully consider whether an Arpaio pardon — whenever and wherever it happens — would do the opposite.
Jeffrey Crouch is an assistant professor of American politics at American University. He is the author of The Presidential Pardon Power. He is Editor-in-Chief of Congress & the Presidency journal.