After Arpaio, 4 Answers To Questions About How Pardons Are Supposed To Work

Aug 28, 2017
Originally published on August 30, 2017 9:23 am

Updated at 5:15 p.m. ET

President Trump has exercised clemency power for the first time in his young presidency to bestow a pardon on former Arizona Sheriff Joe Arpaio.

Arpaio, 85, had faced sentencing Oct. 5 for a criminal contempt conviction in connection with his failure to follow a federal court order in a racial profiling case. Justice Department prosecutors argued he indiscriminately targeted Latinos and detained them without evidence they had broken the law.

"He's done a great job for the people of Arizona," the president said at a news conference Monday. "He's very strong on borders, very strong on illegal immigration. He is loved in Arizona. I thought he was treated unbelievably unfairly."

But the decision by Trump to use his pardon authority on behalf of a controversial law enforcement figure elicited disapproval from across the political spectrum, including the Republican speaker of the House and top lawyers at the American Civil Liberties Union.

It also provoked questions about how clemency happens and whether there are any limits on presidential pardon authority. Here are attempts to answer some of those:

1. What gives the president the power to grant clemency?

The power to pardon comes from Article II of the U.S. Constitution, which says the president "shall have power to grant reprieves and pardons for offenses against the United States."

Courts have interpreted this authority broadly. He can do what he wants — as long as it's a federal crime he is granting clemency for.

Typically, the Justice Department's Office of Pardon Attorney reviews applications and makes recommendations. Under Justice Department guidelines, people are not encouraged to apply for clemency until five years after their conviction or sentencing.

But the White House can and does make clemency grants outside of the lengthy Justice Department process, as it did in the Arpaio case, since the former sheriff had not yet been punished and had not submitted paperwork to authorities.

"I stand by my pardon of Sheriff Joe," Trump told reporters Monday.

2. What's the difference between a pardon and a commutation?

A pardon is considered "an expression of forgiveness" by the president, according to Justice Department guidance. It doesn't mean a person is innocent, but makes it easier for him to vote, serve as a member of a jury, run for political office and, in many cases, win licenses to own firearms and perform certain jobs. Wiping a person's criminal record clean entirely requires another judicial step, called expungement.

A commutation shortens a person's prison sentence, but it does not remove a conviction from his or her record. People who win commutations are still required to pay restitution for their crimes.

3. President Trump's allies point out there's a long history of controversial clemency decisions, going back decades. What about those?

Late in President Obama's tenure, he commuted the sentence of Chelsea Manning, who had already served seven years for leaking secret State Department cables and war logs to the website WikiLeaks. Manning had been sentenced to 35 years in prison, and her lawyer said she feared for her life after a suicide attempt. Trump called Manning a "criminal leaker" at his news conference.

Obama pardoned retired Gen. James Cartwright, who pleaded guilty to lying to the FBI about his contacts with reporters investigating Iran's nuclear program. Like Arpaio, Cartwright was pardoned before he was sentenced by a federal judge. The Justice Department had asked the judge to impose a two-year sentence.

Under President George W. Bush, former vice presidential aide Lewis "Scooter" Libby won a commutation in a leak case involving the identity of a CIA operative.

And, in the Bill Clinton years, his pardon of fugitive financier Marc Rich launched investigations by Congress and federal prosecutors in New York.

4. So why is there so much bipartisan outcry over clemency for Arpaio?

The Justice Department opened its investigation into Arpaio after a referral from a federal judge and career prosecutors from the public-integrity section led the case.

Matthew Axelrod, a Justice Department official during the Obama administration, said "the granting of this pardon exhibits disrespect" for the federal judiciary.

"By pardoning him," Axelrod said, "Trump effectively neutered the ability of the judge who issued that order to have it enforced. That's a dangerous precedent."

He added: "Sheriff Arpaio was not convicted of 'doing his job,' as [Trump] said the other day; he was convicted of failing to enforce the law consistent with the Constitution."

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Every president makes at least one controversial pardon. But Donald Trump's pardon of former Arizona Sheriff Joe Arpaio is different. It came just seven months into the Trump presidency, and it was announced late Friday night on the verge of a historic storm headed for the Texas coast. With us to talk more about the pardon is NPR justice correspondent Carrie Johnson. Hello there.


MCEVERS: So why did Joe Arpaio need to be pardoned in the first place?

JOHNSON: Arpaio had been sheriff in Maricopa County, Ariz., for years since 1993. But his treatment of Latinos had come under scrutiny. There were allegations he was engaging in racially profiling people, detaining people there for no good, legal reason, sometimes ensnaring U.S. citizens. There were also complaints he failed to investigate other crimes - sexual assaults - and that he mistreated inmates in his jails. A federal judge found that Arpaio had defied a court order to stop detaining Latinos, referred him to the Justice Department on contempt charges. And earlier this year, Kelly, he was convicted.

MCEVERS: Joe Arpaio had been a longtime supporter of Donald Trump, and they were allies in making the false claim that President Obama had been born outside of the United States. Why did President Trump say that he granted this pardon?

JOHNSON: According to a White House statement late Friday, Arpaio is 85 years old, military veteran, a longtime law enforcement figure devoted to his country. President Trump was motivated by those factors. Now, the president has sweeping power under the Constitution to grant pardons for federal crimes. Joe Arpaio never went through the Justice Department process for applying for clemency, which usually requires a conviction, punishment and a wait about five years. But under the law, President Trump's able to bypass that system and go it alone. The consequences for him are political, not legal.

MCEVERS: Supporters of the White House have pointed out that there is a long history of presidents who give out pardons for political reasons. Is that true?

JOHNSON: Yes and no. President Obama granted more clemencies than any president since Harry Truman, nearly 2,000 of them mostly to drug criminals. But Obama also commuted or shortened the prison sentence of Chelsea Manning. Manning was convicted of leaking State Department cables and war logs to WikiLeaks. She served seven years.

Obama also pardoned his favorite general. That's a man named James Cartwright, who pleaded guilty to lying to the FBI in another leak case. Cartwright was not yet sentenced when he won the pardon from Obama soon before Obama left office. And of course in the Bill Clinton years, his last-minute pardon of the fugitive money man Marc Rich launched investigations by Congress and the Justice Department.

MCEVERS: So how is Joe Arpaio's case different, if at all, from those examples?

JOHNSON: Well, I've been talking to legal experts since last weekend. Legal experts are pointing out that Arpaio was convicted of violating a federal judge's order, which goes to the heart of the judicial system and its legitimacy from a president who's blasted judges and his own attorney general. Speaking of that attorney general, the Washington Post reported Trump asked Attorney General Sessions to get rid of the case against Arpaio before it went to trial this year. Sessions said no. I talked with a guy named Matt Axelrod, who was an official in the Obama Justice Department, about that. Here's what he had to say.

MATT AXELROD: It's a distressing breach of a traditional and necessary wall of separation between the White House and the Department of Justice when it comes to criminal cases. It's a bedrock principle of law enforcement that criminal investigations and prosecutions must be conducted independent of politics.

JOHNSON: So independent of politics - speaking of that independence, President Obama's attorney general, Eric Holder, tweeted over the weekend, the number of times over six years that Obama called and asked me to think about dropping a case - zero.

MCEVERS: NPR's Carrie Johnson, thank you so much.

JOHNSON: You're welcome. Transcript provided by NPR, Copyright NPR.