In Federalist 74, Alexander Hamilton said of pardons: "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
Hamilton's point: Pardon power is the ability to temper justice with mercy or to advance public policy where presidential pardon serves the interests of the nation.
President Donald Trump adhered to neither framework when he pardoned Arizona Sheriff Joe Arpaio.
In July, a federal judge found Arpaio guilty of criminal contempt of court. U.S. District Judge Susan Bolton said evidence demonstrated Arpaio's "flagrant disregard" for another federal judge's order requiring Arpaio to stop profiling suspects during his immigration round-ups. Arpaio's conviction did not stem from his enforcement of immigration law. It came about as a result of him selectively applying the law via profiling.
Arpaio didn't just ignore the order of a federal judge. He made public statements revealing his contempt for the ruling. In reply to an inmate at his jail who suggested that federal law outranks Arpaio, he stated: "No. Nobody is higher than me. I am the elected sheriff by the people. I don't serve any governor or the president."
How ironic, then, that he'd seek out Trump in his time of need. Trump and Arpaio share a special kinship in that both were major proponents of the "birther" conspiracy theory that President Barack Obama was born in Kenya and not the United States. In 2012, Trump went so far as to praise Arpaio's efforts to "investigate" Obama's birth certificate.
In July of 2012 Trump tweeted: “Congratulations to @RealSheriffJoe on his successful Cold Case Posse investigation which claims @BarackObama's 'birth certificate' is fake”
Arpaio's hard-nosed tactics cost Arizona taxpayers more than $140 million in legal fees, settlements and court awards since he first took office in 1993. Maricopa County voters finally had enough of Arpaio, voting him out of office in 2016. He lost to Democrat Paul Penzone by 13 points in a state in which Trump beat Hillary Clinton by 4 points.
The issue here is Trump's flagrant abuse of that power.
In almost all cases, the president seeks the advice of the Justice Department when considering issuing a pardon. Trump worked outside of that lengthy process.
Additionally, Trump and his supporters claim that Arpaio's conviction of criminal contempt stemmed from him simply "doing his job." The court record makes clear that Arpaio's conviction had only to do with his clear violation of a judge's order, nothing more.
To make matters worse, Trump had the audacity to say he timed the pardon to maximize ratings by waiting until Hurricane Harvey made landfall in Texas to make the announcement. It is hard to imagine something more cynical than using a natural disaster to promote a controversial pardon.
Trump often speaks of the "rule of law," but in this case, he rewarded Arpaio for violating that rule of law. Many Trump supporters appreciate how the president flouts protocol and convention when it comes to politics. But this is not about politics. It is the highest law enforcement officer in the land using his power for partisan political purposes.
That is not a good outcome for the pardon process or the country.