Ever since President Trump suggested that he will pardon former Maricopa County Sheriff Joe Arpaio, the potential that Arpaio could be pardoned before he is even sentenced for his recent criminal conviction has sparked outrage from civil rights groups and others. While I don't share concerns other have voiced about the president’s failure to adhere to typical pardon procedures, a pardon of Arpaio would undermine respect for the law.
As a starting point, the United States Constitution gives the president an almost unlimited power to pardon people for federal offenses. The only exception mentioned in the Constitution is "cases of impeachment." Although I have expressed doubt that the president has the power to pardon himself, some commentators believe the pardon power extends even that far.
So there is no serious debate about whether the president can pardon Arpaio's federal criminal offenses if he wants to do so. But as ACLU Deputy Legal Director Cecillia Wang pointed out, a pardon of Arpaio at this stage is highly unusual. There are established procedures that the Justice Department follows when advising the president on pardons. Typically, pardons are not considered until five years after a defendant has been sentenced, and the Justice Department’s Office of the Pardon Attorney considers factors including the defendant's rehabilitation.
But a failure to follow those established protocols is not itself problematic, in my view. Many defendants don't receive lengthy prison sentences, and in Arpaio's case, it is unlikely that he would receive a five-year sentence. In a different situation, with a different defendant, it might be appropriate for the president to grant a quick pardon to prevent an injustice.
For example, at times peaceful protesters have been jailed for exercising their First Amendment rights. Martin Luther King, Jr. famously spent time in jail. If the president pardoned someone who was arrested in the course of protesting neo-Nazis or the Klu Klux Klan and was sentenced to a few nights in prison, most Americans would applaud.
The problem with Arpaio's pardon is what he's being pardoned for. Arpaio was convicted for defying the order of a federal judge. To be clear, he wasn't convicted for making a mistake when he tried to implement the judge's order. He wasn't convicted for doing a bad job of implementing her order. As the judge found, he was convicted for "announc[ing] to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise," including a federal judge who ordered him not to stop arresting suspected illegal immigrants — in essence to stop racially profiling Latinos.
There are lawful ways to disagree with a court's order. You can appeal the order, you can ask the judge to reconsider the order, and you can also exercise your First Amendment right to tell the world that the judge is wrong. But it is against the law to repeatedly proclaim that you will "continue to keep doing what he had been doing," as the judge found, and then to begin a coordinated effort to undermine and disobey the judge's order.
This week, the president said that Arpaio was "convicted for doing his job." It's no one's "job" to commit a federal crime or to engage in a deliberate and calculated effort to violate a lawful court order. One of the founders of our country, John Adams, famously wrote that we are "a government of laws, not of men." That means that no person is above the law, and we are all obligated to follow it. That concept is the foundation of our system of government.
While the president has the power to pardon Arpaio, a presidential pardon would draw attention to a case that millions of Americans are already watching closely. A pardon could send the message, whether intended or not, that the president's friends or supporters do not need to respect the law and can flout court orders. That message would be inconsistent with the respect for the law that is central to our system of government. The president should not send that message.
Renato Mariotti is a former federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office in Chicago and he has prosecuted federal obstruction of justice cases. Follow him on Twitter @renato_mariotti.