November 24, 2017

Pardoning The Texas Way?

Dr. Malcolm Cross

It’s easy to see why President Trump pardoned former Arizona Sheriff Joe Arpaio.  According to The New York Times, “Mr. Arpaio, an anti-immigrant hard-liner who served 24 years in office before voters tossed him out last November, was convicted in July of criminal contempt of court for disregarding a federal judge’s orders to stop detaining people based solely on the suspicion that they were in the country illegally.”  But he and President Trump are political allies who think alike on immigration.  Besides, Mr. Arpaio is wildly popular with President Trump’s political base, so pardoning him helps shore up the base and will make it easier for the President to cope with future political challenges.

But the pardon is itself wildly controversial.  Mr. Arpaio won both a loyal following and determined opposition for his strict treatment of county prisoners as well as his relentless hunt for illegals.  President Trump’s critics say the pardon will undermine respect for the rule of law.

The Constitution is clear:  The President has unlimited and uncheckable power to grant pardons for those convicted, or likely to be convicted, of federal crimes, meaning that President Trump had every legal right to act as he did.  The founding Fathers knew that sometimes the criminal justice system could make mistakes, whether by punishing someone innocent of a crime or punishing him too severely even if he was guilty.  For those cases, someone—the President—would have to step in and see that mistakes were corrected and justice was truly done.  Most governors have similar powers at the state level as well.

But should our national and state chief executives have this power? 

Supporters of President Trump would no doubt say “yes,” at least as far as the Arpaio case is concerned.  But they should recall the abuses or otherwise questionable decisions made by Trump’s immediate Democratic predecessors.  For example, President Obama pardoned an unrepentant Puerto Rican terrorist, Oscar Lopez Rivera; and President Clinton (who also pardoned terrorists) ended his presidency by pardoning convicted, unrepentant and fugitive financier Mark Rich after Rich’s ex-wife gave Hillary $200,000 for her 2000 Senate race.  (Bonus fun fact:  Denise Rich was a good friend of Trump’s and appeared on an early season of The Apprentice as the hostess of a party for Trump’s contestants).

And what about the Republicans?  Former Mississippi Governor (and Chairman of the Republican National Committee), Haley Barbour, pardoned 193 convicted criminals on his last day in office, including five murderers who had won his favor by helping refurbish the Governor’s mansion.  Among those pardoned by former Arkansas Governor and presidential candidate, Mike Huckabee, were a rapist who resumed his criminal career, and another rapist who promptly shot and killed four police officers. 

Of course, not every pardon issued by a chief executive will be as controversial as those of Trump or Obama, or as corrupt-appearing as President Clinton’s, or as inexplicable and dangerous as those of Barbour and Huckabee.  No doubt defenders of the unconditional pardon power of the President and state governors can point to many cases where the executive acted with reason and humanity.

But perhaps we should also at least consider the Texas way of handling pardons.   Texas is one of the few states whose constitution does give the governor an unlimited pardon power.  Rather, a 1936 constitutional amendment, passed in response to a fear that a governor might issue pardons in exchange for bribes, established a Pardon and Parole Board that must first recommend clemency to the governor before he acts, thereby requiring the review of criminal cases by another set of eyes, and providing a check on an executive’s power.  This arrangement obviously reduces the power of the executive to intervene in criminal cases—an argument against its adoption, in the opinion of believers in strong executives, but a point in favor in the opinion of those who distrust excessive executive power.

The chances of putting such a limit on the President in the foreseeable future are remote, given that the U. S. Constitution must first be amended to do so.  In the meantime, those who criticize President Trump for pardoning former sheriff Arpaio can fairly be questioned about their thoughts on the decisions of Obama, Clinton, Barbour, and Huckabee.  And those who support President Trump’s decision, and who presumably would oppose limits on his power, should ponder whether the benefits of an unlimited power to pardon Mr. Arpaio are worth the dangers of pardoning unrepentant crooks, terrorists, rapists, and murderers.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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