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Trump's reckless Arpaio pardon fuels a Category 5 constitutional crisis | Will Bunch

Trump's Arpaio pardon was meant to signal all Americans that the rule of law cannot constrain him.

In this Feb. 4, 2009, file photo, Maricopa County (Ariz.) Sheriff Joe Arpaio orders approximately 200 convicted illegal immigrants handcuffed together and moved into a separate area of Tent City for incarceration until their sentences are served and they are deported to their home countries.
In this Feb. 4, 2009, file photo, Maricopa County (Ariz.) Sheriff Joe Arpaio orders approximately 200 convicted illegal immigrants handcuffed together and moved into a separate area of Tent City for incarceration until their sentences are served and they are deported to their home countries.Read moreAP file

If there was ever a time for the Trump administration to suspend its war on migrants — particularly against Mexican immigrants so heavily concentrated on America's southern border — it would have been Friday night, as Hurricane Harvey bore down on the south Texas coast with winds swelling to 140 mph, and carrying so much moisture that some towns may get 50 inches of rain. But humanitarian instincts, empathy, and even basic common sense continue to elude the 45th presidency of the United States.

The government made it clear that migrants with uncertain immigration status trying to flee the deadly storm with their families would still possibly face the widespread Immigration and Customs Enforcement (ICE) checkpoints within 100 miles of the border, making it likely that some would try to ride out Harvey rather than risk deportation.  In San Antonio, ICE agents stranded 50 migrants from Central America, including children, at the local bus station — after service had already been suspended because of the storm. It was more evidence that American immigration policy has been a human rights nightmare since Trump and John Kelly, who ran Homeland Security for six months before he was promoted to Trump's chief of staff, arrived in Washington in January.

Then, about 9 p.m. Friday, just as Harvey was making its devastating landfall east of Corpus Christi and TV news was dominated with live shots from soggy, wind-battered reporters, Trump added an unbelievable insult to the ongoing injury of his abusive immigration policy — announcing that he was pardoning Arizona ex-sheriff Joe Arpaio, an early and staunch political supporter, before Arpaio could be sentenced on federal contempt charges for abusing the constitutional rights of Latinos by racially profiling them in traffic stops.

It was a flabbergasting move on so many levels.

For one thing, it was the ultimate in what's become known as "the Friday night news dump" — putting out a controversial decision, or bad news, at a moment when the media is in low gear and when the typical citizen is doing normal human stuff, such as enjoying a weekend getaway. This was multiplied by a factor of 10 by dumping the news into the eye of a hurricane; it would have been cruel and even a public disservice for TV news to dwell on Trump's first presidential pardon rather than the need for millions of Texans to seek safety. (Worth noting is that the White House also chose this moment for another staggering work of heartbreaking cruelty in banning transgender people from the military, not to mention the ouster of unqualified, ultra-right-wing top adviser Sebastian Gorka.) The brutal timing was a chance for Trump to play both ways — to use the Arpaio pardon to send a message of reassurance to his base and target his many enemies with a show of force, and yet avoid 24/7 harassment from the TV talking heads whom our president seems to spend most of his day watching.

The initial, gut reaction is that — in rewarding Arpaio for unconstitutional and repressive policies toward migrants and other Latinos during his long reign as sheriff in Maricopa County, which includes Phoenix and its major suburbs — Trump was doubling down on white supremacy in the wake of his divisive handling of the tragic unrest in Charlottesville, Va. Even as the incarnation of the president now known as "Teleprompter Trump" veered into scripted, lifeless pleas for national unity, Trump's Arpaio move was another signal to supporters that he can still be counted on to do the politically incorrect thing that will drive liberal journalists and professors and movie stars so crazy.

Few were buying the image of the 85-year-old Arpaio as the law-and-order hero who Trump portrayed in his pardon message. To the contrary, the former sheriff was the mastermind of an abusive regime that flouted basic human rights on American soil, who ignored years of court orders to uphold the basic protections of the Bill of Rights until federal prosecutors felt compelled to take forceful action.

Let this sink in: Arpaio's brutal "tent city" for inmates in the Arizona desert — where detainees struggled to endure 120-degree summer days and frigid winter nights, humiliated by wearing pink underwear  — was accurately described by the sheriff himself as a "concentration camp." Scores of prisoners died in the custody of Arpaio's henchmen, including many who hanged themselves amid the cruel mistreatment. And individual stories of cruelty are legion, such as this beatdown of a paraplegic inmate who merely asked for a catheter. The reality is that Arpaio's reign of terror also undermined the rule of law, including the raft of sex crimes against women and even children that were ignored because of the sheriff's total focus on waging war on the immigration front.

Last weekend, a man named Francisco Chairez, who spent a year in Arpaio's custody on a drunk-driving conviction, wrote a must-read op-ed about this crisis of conscience in the desert Southwest:

It was impossible to stay cool in the oppressive heat. Everyone would strip down to their underwear. There was no cold water, only water from vending machines; and, eventually, the machines would run out. People would faint; some had heatstroke. That summer, ambulances came about three times. One man died in his bed.
— But the winter was even worse.

The weird thing is that in the run-up to Trump's pardon of Arpaio, the people who knew the sheriff best had grown tired of his shtick. As the federal contempt case advanced, Maricopa County voted Arpaio out of office last fall.  The state's two GOP senators have now criticized the pardon. And the move was ripped by Arizona's largest newspaper.

So what, other than sending a dog whistle to his base in the form of an air horn, did Trump think he was accomplishing? Three things, each more alarming than the last:

  1. The seemingly unfettered power of a president to grant pardons and clemency has grown more controversial over the last four decades, from Richard Nixon to the Iran-Contra bad guys to Marc Rich to Scooter Libby to Chelsea Manning — but Trump, in his Trumpian way, took things to a new level. A new, very low level. Arpaio was an elected official and a law enforcement officer who, a judge found, used that power to take away the Fourth Amendment rights of Latino suspects. And Trump pardoned the ex-sheriff before he could even be sentenced for that crime. This is an administration that's shown little regard for the constitutional niceties of what it calls "law and order," from its immigration roundups in schools and courthouses to its refusal to consider wrongdoing in police-involved shootings or alleged brutality. The message is clear to law officers abusing their power to violate civil rights and to commit state violence: The Trump administration is here to protect you — not human rights.

  2. It's impossible to wonder whether the Arpaio pardon wasn't really a signal to key players in the Trump-Russia scandal now being aggressively investigated by special counsel Robert Mueller: that Trump can and will use the full power of the presidency to protect them if they "do the right thing" and protect Trump. After all, Mueller could, theoretically, use the threat of jail time to persuade key players in that probe to testify against Trump, his family members, or key aides. But Trump is essentially offering those witnesses a better deal, a presidential get-out-of-jail free card. It's yet another massive obstruction of justice from this White House.

  3. It's impossible to understate the abuse of presidential power that just took place here. Indeed, the Washington Post is now reporting that the president leaned on his attorney general, Jeff Sessions, to try to quash the Arpaio case before he was ever convicted. In other words, Trump was determined to use the power of his office to make sure a friend and early political supporter would not go to prison. In doing so, he has obliterated any lines that remained between the chief executive and an independent system of justice. Simply put, in Trump's America, the president is creating a class of citizens who are above the law. And his Trump-Russia cronies will soon join that circle.

It's critical to see this as being about more than just "Sheriff Joe." Simply put, Trump — under a hurricane's blanket of darkness, no less — has fueled a Category 5 constitutional crisis. Though there are no written restrictions on a president's ability to issue a pardon, this president has again violated his unwritten compact of trust with the American people. And Trump should not have a license to freely abuse his presidential power, which would be another giant stride toward autocratic rule in this country. Needless to say, the stakeholders in our democracy — but especially Congress, which along with the judiciary is the last remaining check on an authoritarian executive — need to respond forcefully to this outrage, up to and possibly including impeachment proceedings. Otherwise, the next abuse of power will be much, much worse, and the options for stopping an American dictatorship will be limited.