President Trump’s decision to pardon Joe Arpaio was characteristically unconventional. It came late on a Friday night as a hurricane bore down on Texas. It concerned a crime some said was particularly ill-suited to clemency, and it was not the product of the care and deliberation that have informed pardons by other presidents.
But it was almost certainly lawful. The Constitution gives presidents extremely broad power to grant pardons.
Last month, a federal judge found Mr. Arpaio, a former Arizona sheriff, guilty of criminal contempt for defying a court order to stop detaining immigrants based solely on the suspicion that they were in the country illegally. The order had been issued in a lawsuit that accused the sheriff’s office of violating the Constitution by using racial profiling to jail Latinos. Mr. Arpaio had faced a sentence of up to six months in jail.
Mr. Trump thus used his constitutional power to block a federal judge’s effort to enforce the Constitution. Legal experts said they found this to be the most troubling aspect of the pardon, given that it excused the lawlessness of an official who had sworn to defend the constitutional structure.
Noah Feldman, a law professor at Harvard, argued before the pardon was issued that such a move “would express presidential contempt for the Constitution.”The Justice Department's Office of the Pardon Attorney spells out ordinary standards for pardons:
When an offense is very serious (e.g., a violent crime, major drug trafficking, breach of public trust, or white collar fraud involving substantial sums of money), a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction. In the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account. Victim impact may also be a relevant consideration. When an offense is very old and relatively minor, the equities may weigh more heavily in favor of forgiveness, provided the petitioner is otherwise a suitable candidate for pardon.
The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication. While the absence of expressions of remorse should not preclude favorable consideration, a petitioner's attempt to minimize or rationalize culpability does not advance the case for pardon. In this regard, statements made in mitigation (e.g., "everybody was doing it," or "I didn't realize it was illegal") should be judged in context. Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.