Presidential Pardons
The Issue
President Trump formally pardoned Joe Arpaio on Friday August 25, 2017, wielding the presidential power of mercy to absolve the former Arizona sheriff for defying a federal court order. This is a big deal! What do you think? And what can you do about it? It’s your time to take part in this discussion by acting on your informed knowledge!
Critical Question
Does the President have the Constitutional power to pardon Joe Arpaio and should he have pardoned him?
Your Opinion
What do you think? Take our survey.
Fact Sheet
A little information goes a long way!
Now let's get a little bit of context and learn a little bit more about presidential pardons.
These next two images are really interesting. They are the first batch of pardons from President George W. Bush (top) and President Barack H. Obama (bottom). Notice the dates of both pardons - at the end of each president's second year in office.
And for a really deep dive, check out this US Department of Justice - Office of the Pardon Attorney - List of all pardons by president
And here's a couple of helpful answers to questions about presidential pardons. Thanks internet!
Are There Different Types of Pardons?
When a person is convicted of a felony, he loses various civil liberties — the right to vote, serve on a jury, or own a firearm. A full pardon restores all these rights. It’s as if the crime never took place.
In a conditional pardon, a president may issue a pardon in exchange for something in return. For example, President Richard Nixon gave Jimmy Hoffa a conditional pardon in exchange for Hoffa’s pledge to never again take part in labor organization.
A president can also grant a remission releasing a person from a legal obligation. This applies only to fines levied against an individual as the result of a federal case.
A commutation shortens or abolishes the sentence, but leaves intact the civil disability. Commutations had been fairly rare until the Obama administration.
A respite is a short-term action — lasting only a month or two — and allows the president to delay a sentence or execution. Usually, the purpose of a respite is to buy time to allow further consideration of a pardon petition.
Can Presidential Pardons Be Undone?
The president isn’t required to explain or justify a pardon to anyone. The power to pardon cannot be reviewed or overturned by any of the other branches of government. There is basically no way to block a presidential pardon. Ambition may not counteract Ambition!
While pardons cannot be undone, the threat of impeachment might deter a president.
What Stops A President from Just Pardoning All His Cronies?
Congress has a particular incentive to curb the President’s power of pardon when it is investigating the President or his administration. Although a president can grant pardons to members of his Administration who refuse to testify before Congress, the Supreme Court has held that Congress’s power to hold its witnesses in contempt lies outside the president’s pardoning power. This means that witnesses hauled before Congress can be jailed in contempt for refusing to testify, and cannot be rescued by a presidential pardon. Or, prosecutors can wait until a president is out of office and then prosecute his cronies.
Presidential pardoning powers are vast
The Supreme Court actually ruled on this matter in the 1866 case of Ex parte Garland. That decision concerned a law Congress passed disbarring former members of the Confederate government, which was challenged by former Confederate Sen. August Hill Garland. President Andrew Johnson had pardoned Garland, and Garland argued that this shielded him from disbarment under the law. The Supreme Court agreed, and in doing so clarified that the pardon power is basically unlimited and can be applied to any crime, whether the pardoned person has been charged or not.
“By the second section of the second article of the Constitution, power is given to the President 'to grant reprieves and pardons for offences against the United States, except in cases of impeachment,’” Justice Stephen Field wrote. “With that exception the power is unlimited. It extends to every offence, and is intended to relieve the party who may have committed it or who may be charged with its commission, from all the punishments of every description that the law, at the time of the pardon, imposes.”
HOW DOES THE PARDON PROCESS USUALLY WORK?
Someone who has been convicted of a federal crime and wants to be pardoned makes a request for a pardon to the Justice Department’s Office of the Pardon Attorney, which assists the president in exercising his pardon power. Department rules tell pardon seekers to wait at least five years after their conviction or their release from prison, whichever is later, before filing a pardon application.
It’s then up to the pardon office to make a recommendation about whether a pardon is warranted. The office looks at such factors as how the person has acted following their conviction, the seriousness of the offense and the extent to which the person has accepted responsibility for their crime. Prosecutors in the office that handled the case are asked to weigh in. The pardon office’s report and recommendation gets forwarded to the deputy attorney general, who adds his or her recommendation. That information is then forwarded to the White House for a decision.
WHAT MAKES ARPAIO’S PARDON UNUSUAL?
Arpaio didn’t submit a pardon application through the Office of the Pardon Attorney. His pardoning also took place before he was sentenced. Arpaio was convicted July 31 of misdemeanor contempt of court for intentionally defying a 2011 court order to stop traffic patrols that targeted immigrants. He had been set to be sentenced Oct. 5 and faced up to six months in jail. The fact that Arpaio was pardoned for a misdemeanor offense, which carries a penalty of less than a year in jail, is also unusual. Generally those seeking presidential pardon have been convicted of felonies.
What did Arpaio do anyway?
Arpaio, who left office in January, ranks among the most controversial law-enforcement officials in American history. Phoenix-area voters elected him six times to lead the Maricopa County Sheriff’s Department, which he governed as a proto-Trumpian figure for almost a quarter-century. Arpaio’s harsh treatment of undocumented immigrants and criminal suspects brought him the adoration of Fox News viewers and multiple civil-rights lawsuits. He claimed former President Barack Obama’s birth certificate was a forgery even after Trump himself had publicly abandoned that stance. And he shared Trump’s disdain for the federal judiciary, frequently castigating the judges who oversaw lawsuits against him.
His extreme treatment of prisoners and detainees drew widespread condemnation and allegations of racial bias. A 2011 Justice Department report concluded that Arpaio engaged in “unconstitutional policing” by systematically targeting Latinos for racial profiling. That same year, in response to a lawsuit, a federal judge ordered Arpaio to stop detaining and harassing residents of largely Latino neighborhoods. He ignored the order and continued to perform sweeps, claiming they were lawful.
The judge charged him with civil contempt in 2015 and criminal contempt, a misdemeanor offense, the following year. A federal court found him guilty in July. Trump’s pardon comes before that legal process against Arpaio had finished: His sentencing hearing was scheduled for October, where he faced a maximum of six months behind bars.
How does the timing of this pardon compare to Presidents W. Bush and Obama?
The pardon is Trump’s first since taking office, breaking a barrier relatively early in his tenure. Almost two years passed before Barack Obama issued nine pardons to people convicted of relatively minor offenses; George W. Bush waited only a few days longer into his first term to erase convictions for selling moonshine and stealing $11. But Trump eschewed his predecessors’ modest lead, instead wiping clean a guilty verdict for criminal contempt of court for one of his staunchest political supporters after only eight months in office.
Now I'd like you to organize your thoughts by answering the following questions before anyone else is pardoned.
Ponder On
Who does the U.S. Constitution (above) give the president the power to pardon?
Why did President Trump pardon Joe Arpaio?
What groups of people or institutions did this pardon upset?
Who groups of people or institutions did this pardon please?
Was this pardon constitutional?
Why didn’t President Trump take this pardon through the normal pardon process and through the Department of Justice Department of pardon?
This was President Trump’s first pardon, 7 months into his presidency. How does the timing of this pardon compare to former presidents?
What are two consequences of this pardon?
Overall, do you think that the pardon of Joe Arpaio was a good thing?
Discuss the impact of this pardon on the following:
Democracy
Separation of Powers
Federalism
Independent Judiciary
Rule of Law
Presidential Approval
Points of View
Pro-tip: there are other people in the world and they don’t all think like you.
As you think about the following actual and hypothetical people, consider how each individual would probably feel about the pardon of Joe Arpaio. To convey their feelings, list one adjective or mark a frowny (anti-pardon) or happy (pro) face next to each person.
A member of the KKK
The federal judge who held Joe Arpaio in contempt of court
All federal judges who care about their orders being upheld
Donald J. Trump
Dr. Martin Luther King Jr.
An undocumented alien living in Phoenix, Arizona
An American citizen with brown skin living in Phoenix, Arizona
You
Your parents
Create a hypothetical individual who would be most happy about the pardon
Create a hypothetical individual who would be least happy about the pardon
Do
Now let's actually do something about all this stuff we know.
Discuss
Hey, teachers! This would be a great time for a fishbowl about Trump's pardon of Joe Arpaio.
Write
Write makes Might!
Now, let's take all that knowledge and our fishbowl discussion and write an argumentation essay: should President Trump have pardoned Joe Arpaio.
Action
Now let's take an informed civic action.
Here's a whole list of civic actions you can take about this topic.
Re-reflection
Let's return to critical question and get your opinion again
Critical Question
Does the President have the Constitutional power to pardon Joe Arpaio and should he have pardoned him?
Re-Reflection
How did your opinion change?
In what way did your opinion not change?
What do you know now that you didn’t know before.
Share your answers in class and online
