Donald Trump trampled on the US constitution and rule of law to score a cheap political point with his base when he pardoned former sheriff Joe Arpaio, ex-White House officials argued on Saturday.



Such voices were not alone in speculating that Trump is testing his pardon powers in readiness for the conclusion of special counsel Robert Mueller’s investigation into his election campaign’s alleged collusion with Russia.

The president spared Arpaio, a loyal supporter and immigration hardliner, possible jail time for wilfully defying a court order to stop racially profiling Latino people in Arizona.

Trump had earlier asked his attorney general, Jeff Sessions, whether it would be possible for the government to drop the case altogether, it was reported.

Republican House Speaker Paul Ryan made clear his criticism of the pardon. “Law enforcement officials have a special responsibility to respect the rights of everyone in the United States,” said his spokesman, Doug Andres, in a statement. “We should not allow anyone to believe that responsibility is diminished by this pardon.”

The announcement came on Friday night as Hurricane Harvey raged, rightwing nationalist Sebastian Gorka was forced out of the White House and Trump approved a directive prohibiting transgender people from enlisting in the military. It was the most spectacular political coincidence since Hillary Clinton campaign emails were released half an hour after an Access Hollywood tape in which Trump bragged about groping women.

Bob Bauer, former White House counsel to president Barack Obama, wrote on the Lawfare blog: “Trump went ahead with the pardon, and reasons having nothing to do with injustice, or the public welfare, can explain it. He has political problems with his right flank – with the Steve Bannons and the Sebastian Gorkas who are loudly protesting the ascendancy in the White House of Republicans lacking their revolutionary vision.”

Trump previewed the pardon at a raucous campaign-style rally in Phoenix, Arizona, on Tuesday night. He asked the crowd if they liked Arpaio – who styled himself as “America’s toughest sheriff” – and there was a roar of approval. He asserted, without evidence, that the sheriff had been “convicted for doing his job”, an explanation missing from the official statement.

Bauer, a professor at New York University School of Law, added: “It all seems to come down to that: Trump disrupted the operation of the criminal justice process to score a political point, and he believes that the ‘complete power to pardon’ gives him all the space he needs for this maneuver and requires of him only the most pro forma, meaningless explanation of his action.

“He has managed, however, to make a very clear statement about the ‘rule of law’ in his government, and he has miscalculated if he somewhat imagines that it will not come back to haunt him.”

Other analysts agreed that the timing was suspicious. Richard Painter, former White House ethics lawyer for president George W Bush, told the Guardian: “It was not done in the normal way where you have pardons done by the Department of Justice and then recommendations made to the president.

“It was done for political reasons and it is no coincidence that it was done on the same day as the firing of Sebastian Gorka. The problem is the ‘alt-right’, who are obsessed with ethnic supremacy and need something else to distract them, so they threw the pardon for Sheriff Joe into the mix. It certainly wasn’t appropriate.”

Painter added: “I don’t think the pardon will be challenged but we have potentially serious constitutional issues with President Trump. If he tries to use pardons with the Russia investigation, potentially pardoning members of his own family, there will be a ruckus.”

If he tries to use pardons with the Russia investigation, potentially members of his own family, there will be a ruckus Richard Painter

Writing on HuffPost, Bradley Moss, a national security attorney, argued: “By demonstrating his willingness to issue pardons without bothering with the trouble of bureaucratic due diligence or concerns about political backlash, President Trump has sent out a subtle and implicit message to [Michael] Flynn and [Paul] Manafort: hang tight, I have your back.



“He undoubtedly is attempting to forestall either of the two men (or their subordinates) from cooperating with Mueller beyond what’s legally required, with the unspoken reassurance hanging over the investigation that the president can wipe their criminal slates clean if Mueller gets too close.”

Trump reportedly did not consult the justice department before issuing the pardon which, along with being unusually early in a presidency, came just weeks after the court decision and well before Arpaio’s appeal or sentencing. Sally Yates, the former deputy attorney general who was fired by Trump in January, tweeted: “With his pardon pen, POTUS reveals his own contempt for our constitution, our courts, and our founding principles of equality and justice.”

The official White House statement was just two paragraphs long, unlike president George HW Bush’s 1,346-word explanation of his pardon of Iran-Contra defendants 25 years ago. Unlike that case, or Bill Clinton’s infamous pardon of the commodities trader Marc Rich in 2001, Arpaio was found guilty of violating constitutional rights.

Martin Redish, a professor of constitutional law at Northwestern University, suggested that this takes Trump into unchartered territory and could leave him vulnerable to a unique legal challenge.

“Should the president indicate that he does not think Mr Arpaio should be punished for that, he would signal that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies,” Redish wrote in the New York Times, before the pardon was announced.

“Many legal scholars argue that the only possible redress is impeachment – itself a politicized, drawn-out process. But there may be another route. If the pardon is challenged in court, we may discover that there are, in fact, limits to the president’s pardon power after all.”

Donald Trump with Joe Arpaio at a rally in Iowa. Arpaio was an aggressive supporter of Trump’s presidential campaign. Photograph: Brian Snyder/Reuters

Arpaio, 85, was sheriff of Maricopa County, which includes Phoenix, and came to personify the administration’s divisive crackdown on illegal immigration. He was an aggressive supporter of Trump’s election campaign and appeared alongside him at rallies. His extraordinary pardon was condemned by Arizona senators John McCain and Jeff Flake, both Republicans.

The Phoenix New Times, meanwhile, published a searing Twitter thread that included the following posts, some of which linked to past articles about Arpaio: “He ran a jail that he described as a “concentration camp”… Prisoners there died at an alarming rate, often without explanation … One of his jailers nearly broke the neck of a paraplegic guy who had the temerity to ask for a catheter.

“One time, as a publicity stunt, he marched Latino prisoners into a segregated area with electric fencing … He ran an ongoing ‘mugshot of the day’ contest on the Maricopa County Sheriff’s Office website … He arrested New Times reporters for covering him. We won a $3.75m settlement for that one …

“Under him, the MCSO [Maricopa County Sheriff’s Office] failed to investigate hundreds of sex abuse cases, many of which involved children … But he somehow found time and money to send a deputy to Hawaii to look for Barack Obama’s birth certificate … Oh, and one time he staged an assassination attempt against himself? That was weird.”

There was more: “In 2013, a federal judge confirmed what literally everyone in Phoenix knew: he’d been racially profiling Latinos … So naturally, he hired a PI to investigate the judge and his wife … He also kept on profiling people, which is why he got charged with contempt of court (and was found to be guilty AF) … He also tried to destroy some of the hard drives containing material that was supposed to be turned over the court …

“By 2015, his fondness for racial profiling had cost the county more $44m. On top of, you know, ruining lives ... Because this is the Old West or something, he had a ‘Sheriff’s Posse’. One member got arrested on child porn charges.”

Arpaio remains unapologetic, defiant and spoiling for a fight – despite the fact that accepting a presidential pardon is considered an admission of guilt, removing protections under the fifth amendment against self incrimination.

On Friday night, he told Fox News host Sean Hannity: “I’m going to do a news conference early next week and get to the bottom of this and show the abuse of the judicial system and politics.

“I’m not going down without trying to defend myself.”