Robert F. Jakubowicz: Arpaio pardon shows US rule of law means nothing to Trump

"In the government the legislative department shall never exercise the executive and judicial powers, or either of them, the executive shall never exercise the legislative and judicial powers, or either of them, the judicial shall never exercise the legislative and executive powers, or either of them, to the end it may be a government of laws and not of men.

— Article XXX

Part of the First of the

Massachusetts Constitution

PITTSFIELD — At the outbreak of the American Revolution, each of the former colonies were told to form their own governments. The colonies transformed themselves into states with their own Constitutions creating their own governments to rule them. The basis of such rule in Massachusetts is the provision cited above which is the most often quoted provision for the rule of law in America. It was the template for the national government that was later created by the federal Constitution.

President Donald Trump has displayed an alarming disregard for this bedrock principle of American democracy from his campaign for the presidency to his pardon of ex-sheriff Joseph Arpaio of Arizona. During the presidential campaign, Trump made statements that made it sound as if he could singlehandedly, above existing constitutional provisions and federal laws: repeal and replace Obamacare with his better plan on day one of his administration, stop the "carnage" on American streets at the moment of his inauguration, destroy ISIS because he knew more than the generals, halt immigration by Muslims because of their supposed terrorist religious beliefs, undo treaties "ripping off" this nation and renegotiate them because he was a skillful negotiator bar none, bring jobs back to America, and build a wall to stop "bad hombres" from Mexico coming into this country — all of which would make this country such a winner that Americans would get bored with all the success.

Political reward

After taking office, Trump quickly found out he was not above the law. He could not exercise legislative powers. He needed Congress to repeal and replace the Affordable Care Act by passing necessary legislation before he could sign such a change into law. He could not interpret the Constitution's freedom to exercise one's religion to exclude Muslims so he could stop them from entering this country based on their religion which he views as fostering terrorism.     

But now with the Arpaio pardon, he finally found something he can do by himself that relates to placing people who support his policies above the law.

It is the presidential power to pardon people either convicted of a federal crime or from being prosecuted for such a crime. To date the presidents, except for Gerald Ford and his pardon of Nixon, have been generally circumspect in using that power. And usually there are explanations by presidents to justify pardons with reasons such as remorse by the person pardoned, injustice of the conviction and the like.

But in the case of Arpaio there was none of this.

On its face, it appears to be a brazen payoff to a political pal who formed an alliance with Trump from the transparently false Obama birther movement to demeaning and harassing illegal immigrants. Arpaio shows no remorse for his actions. After the pardon was announced, he said in an interview that he did nothing wrong. Here is what he did.

Until 2009, he had federal authority to enforce civil immigration law. Then after that authority was revoked, he continued having his officers detain people on the mere belief they were illegal immigrants. As a result of this, a court order was obtained from a federal judge enjoining Arpaio and his officers from "detaining any person based only on knowledge or reasonable belief, without more, that the person is unlawfully present../in the (U.S.)."

Arpaio was advised by the attorney for his sheriff's office that this order meant that if his office just believed or knew that a person was illegally in this country then he and his officer could not stop and detain that person. Arpaio continued such detentions and in several public interviews in 2012 vowed to continue to do so. And at one point he told one of his officers that if the federal officials refused to take any such persons detained then his deputies were to turn them over to the border patrol.

Message to law-breakers

On August 2016 a federal judge referred Arpaio and some of his officers for investigation of criminal contempt for failure to obey a court order. After a 5-day Bench trial prosecuted by the U. S. Department of Justice, a federal judge concluded that based on the evidence, Arpaio showed a "flagrant" disregard for a judge's order and found him guilty of criminal contempt on July 23 and set October 5 for sentencing. Trump then acted quickly this past Friday while the headlines were full of Hurricane Harvey and before Arpaio's case had run its course to announce the pardon.

Now that Trump has decided to use his pardon power, the message to his supporters, confidantes and family is clear, don't worry about the rule of law if you violate some law pursuing my agenda, even if you are supposed to enforce the law, I can and will place you above the law with a pardon.

Robert F. Jakubowicz is a regular Eagle contributor.


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