- The Washington Times
Monday, August 28, 2017

ANALYSIS/OPINION:

A president’s pardoning power is absolute, as every judge knows, and just as absolute is the certainty that every pardon will be met by a hail of hosannas and a howl of complaint and grievance from someone.

The liberals and others on the left are beside themselves over President Trump’s pardon of Joe Arpaio, the former sheriff of Maricopa County, Arizona, who came a cropper with a federal judge who held him in contempt for enforcing the law on the border when nobody else would.


Sen. John McCain, who would denounce this president if the president gave him a winning lottery ticket, denounced the pardon because “no one is above the law.” Others are treating the pardon as foreshadowing the end of the world.

A columnist at the Detroit Free Press, where locking up everybody might be an attractive solution to crime and mayhem in the sinister streets of Detroit, suggests with typical liberal/progressive/left-wing outrage that it’s time to give up on a country that would elect Donald Trump as its president.

“With one reckless stroke of his pen, [Mr.] Trump last week trashed all those notions of American exceptionalism, and raised serious questions about whether this republic might survive his presidency, or whether it even deserves to.” An editor at the Free Press should give the poor fellow an aspirin, and let him lie down until he feels better.

Mr. McCain could use a good lie-down, too, perhaps not with an aspirin but something stronger, and remind him that a pardon can’t be above the law, because it’s a part of the law. All presidents have used their constitutional power to pardon those whom they think deserve it (and sometimes when they don’t). Some presidents, like Bill Clinton, have profitably pardoned the undeserving.

The New York Times called in one of its usual suspects to express the usual contempt for the president and his sin of the day. Prof. Martin Redish of the Northwestern Law School, with a novel theory of the Constitution, thinks Mr. Trump could be successfully challenged on constitutional grounds because Sheriff Joe, as he was popularly called when he tried to resolve the hell on the border, was convicted of violating constitutional rights, “in defiance of a court order involving racial profiling.”

“Good luck with that theory, professor,” observes the New York Sun. “The thinking at Northwestern seems to be that one can be pardoned for kidnapping, murder or espionage — any federal crime — only so long as constitutional rights weren’t violated.” The professor obviously needs a refresher course in the law, and there are correspondence law schools where he could take a tutorial without having to miss teaching any of his own classes at Northwestern.

Most pardons are controversial, whether by presidents or governors, and every pardon, whether for a real crime, or contempt, which is only contempt of a judge. Not very nice, of course, but judges often have skin as thin as tissue paper, and the judge who sentenced Sheriff Joe, U.S. District G. Murray Snow is infamous among Arizona lawyers for his exceedingly thin skin, and his sometime preference for upholding personal whim, if not the law.

The origins of the controversy go back a decade, when the American Civil Liberties Union sued the sheriff’s office for profiling Latinos at traffic stops and saturation patrols. Judge Snow ordered the sheriff to stop detaining anyone who had not committed a state crime, based merely on suspicion he was in the United States illegally.

Two years later, the judge determined that sheriff’s deputies had violated this earlier order and ordered “anti-bias” indoctrination, a court-appointed “monitor” to enforce compliance and “patrol cameras” to collect evidence. The judge so confused state and federal law that neither the sheriff nor his officers understood which laws they could enforce and which laws they couldn’t. What was clear to all was that the judge wanted to keep the border open for anyone illegal who wanted to drop in.

The hysterics are naturally more concerned about some incidents of contempt than others. Contempt, after all, is a cultivated passion. When Eric Holder, the attorney general at the time, was caught running guns south of the border in a cockamamie sting called “Fast and Furious,” Congress ordered him produce certain documents about it. Mr. Holder, confident that President Obama had his back, refused. He was cited for contempt of Congress, with 17 brave Democrats joining the vote to cite him. Nothing ever came of it. The law must be fairer to some than to others.

Both Sheriff Joe and Mr. Holder stepped in legal traps on the same border. President Obama excused Mr. Holder, and pursued Sheriff Joe relentlessly. It took a presidential pardon to redress the injustice. Fortunately there was one available.

Wesley Pruden is editor in chief emeritus of The Times.


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