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Why presidential pardons are a double-edged sword

By David G. Savage • Aug 31, 2017 at 2:00 PM

WASHINGTON — President Donald Trump’s granting of a full pardon to former Sheriff Joe Arpaio was seen by many legal experts as a sign of what may come in the special counsel’s inquiry into Russia’s meddling in last year’s presidential race and possible collusion with the Trump campaign.

Trump has insisted the investigation led by former FBI Director Robert S. Mueller III is a “witch hunt” and should be shut down, the sooner the better. Some predict that the president will use his power to pardon anyone at any time for nearly any reason to make the investigation moot.

“Kim Jong Un was not the only leader testing his weapons” last week, said Bill Yeomans, a veteran Justice Department lawyer now working with the liberal Alliance for Justice, referring to the North Korean leader’s missile launch a day after Trump pardoned Arpaio, the former sheriff of Maricopa County in Arizona.

“Trump launched a warning pardon that announced the weaponization of the pardon power,” Yeomans said.

The Trump insiders who might benefit include Jared Kushner, Donald Trump Jr., Paul Manafort, Michael Flynn and anyone else targeted by Mueller.

Former White House Counsel Bob Bauer agreed that the Arpaio pardon looked like “a test run for shutting down the investigation.”

But a presidential pardon, sometimes described as a get-out-of-jail-free card, also comes with a lesser-known tradeoff: Those receiving them are often no longer free to refuse to testify.

So long as they face an indictment or fear of federal charges, defendants or targets of an investigation may invoke their Fifth Amendment right against self-incrimination. The Constitution says no one “shall be compelled in any criminal case to be a witness against himself.”

But when charges or potential charges are wiped away by a presidential decree, so too is the right to refuse to testify before a grand jury or before Congress about what they know.

“As the Supreme Court put it in 1895, ‘If the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to the offense as if it had never been committed,’ ” said University of Texas law professor Steve Vladeck.

“Of course, that only works for federal offenses,” Vladeck said. “The president can’t pardon offenses against state law, and so theoretically, someone like Flynn or Manafort could still argue that they have a Fifth Amendment right based upon potential state law crimes. That would, no doubt, provoke some pretty major litigation.”

Still, the conflict between the president’s pardon power and a defendant’s right to remain silent could complicate any White House effort to thwart the inquiry.

Moreover, Trump could build a case of obstruction of justice against himself if he pardoned close associates who were under investigation.

And the president could even unwittingly help Mueller’s team build a case against him.

Freed from threat of prosecution and forced to testify, Trump’s associates would face pressure to disclose everything they know, which could include damaging information about the president.

This is “difficult to game out,” said Peter Zeidenberg, a Washington lawyer and former federal prosecutor. “Yes, witnesses who have been pardoned would lose their Fifth Amendment privilege against self-incrimination and could therefore be forced to testify in the grand jury.

“If they lied, they would be subject to new charges of perjury or obstruction of justice. If they refused to testify, despite being granted immunity, they could be held in contempt. Of course, if that were to occur, Trump could just pardon them again.”

“The bottom line is that if Trump is hell-bent on stymying this investigation by handing out pardons, he probably could do it,” Zeidenberg said. “Of course he would then potentially be exposing himself to impeachment for obstructing the investigation into his own conduct.”

Others said the president’s willingness to use the pardon power could be enough to prevent his associates from cooperating with prosecutors.

Rep. Adam B. Schiff, D-Calif.,, the ranking Democrat on the House Intelligence Committee, tweeted that Trump’s pardon of Arpaio “sends (a) message to witnesses in Russia investigation to keep quiet, stay loyal & get pardon.”

The timing of pardons could be a critical factor.

“To be most effective, pardons should come late in the process,” Yeomans said. For the defendant, “each lie to a federal investigator, grand jury or congressional committee is a new crime.” A presidential pardon for past offenses does not entitle anyone to break the law in the future.

But Trump is not known for patience. He was not willing to wait months or years while Arpaio appealed his conviction for criminal contempt.

“He may be unable to control himself if it appears that indictments are imminent, particularly if they involve family,” Yeomans said. “It is possible that he might try to act earlier in the process in the hope of impeding the investigation.”

The scope of any pardon may also be important. If Trump granted a sweeping pardon that covered all possible federal crimes, the recipient would have a harder time trying to invoke his or her Fifth Amendment rights than if Trump issued a narrower one, for a specific crime or indictment. A narrow or limited pardon may enable individuals to still refuse to testify by citing fear of other potential crimes that were not covered.

Trump’s ultimate pardon power may rest with a question the nation has not yet confronted: Can a president pardon himself or herself?

Legal experts are divided, and the courts have not ruled. But the Constitution makes it clear that if a president is guilty of criminal conduct, the proper remedy is to seek his removal from office through impeachment.

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©2017 Los Angeles Times

Visit Los Angeles Times at www.latimes.com

Distributed by Tribune Content Agency, LLC.

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You'll have to pardon this view of Arpaio's comic career

By Logan Jenkins of The San Diego Union-Tribune (TNS)

Pardon me, but I like Joe Arpaio’s style, if not his substance.

If the 85-year-old Arizona lawman had not existed, someone like him would have been pulled out of central casting as a stock character in the human comedy.

Arpaio’s six-term reign as “America’s Toughest Sheriff” was from beginning to end a running Monty Python sketch starring a modern-day Judge Roy Bean.

Instead of hanging criminals, however, Arpaio delighted in humiliating them, drawing rave reviews of right-wing adulation as well as left-wing condemnation.

Much like the president who pardoned Arpaio last week from a contempt of court sentence (to a chorus of hosannas and catcalls), this son of an Italian immigrant grocer is someone you either really love or really love to hate.

The Arpaio show went on for 24 turbulent years until, weighted down by costly lawsuits and criminal charges, he finally lost an election last year.

That low point in his political life coincided with the rise of a tough-talking kindred spirit ultimately empowered with a gold-plated Get Out of Jail Free card.

Seven years ago, I drove from Rancho Bernardo to the San Diego airport with the sheriff, whose cell phone’s ring tone was a few bars of Frank Sinatra’s signature song, “My Way.”

In our 30 minutes alone together, Arpaio talked non-stop about his contempt for coddling criminals and turning a blind eye to illegal border crossers in the shadows.

In the Arpaio world view, there’s no gray, a color for pettifogging lawyers and liberals, not straight-shooting lawmen.

“I worked hard to get a C in high school,” he told me as we sped past Mira Mesa. (Message: I’m not book smart, but I know what’s right.)

He went into the Army at 18 and served throughout the Korean War (in France, of all places). He was a D.C. cop, then a Drug Enforcement Administration officer in Turkey, Mexico and the Sunbelt before running for a sheriff’s badge in Arizona.

As we drove, he was decompressing from his speech before a 200-plus crowd of the Conservative Order for Good Government (formerly the Conservative Order of Good Guys), which greeted him as if Ol’ Blue Eyes had been resurrected.

Outside the RB meeting hall, which had been cleared by bomb-sniffing dogs, 150 protesters had chanted for TV crews.

Like a pro wrestling villain, Arpaio was drawn to his foes like a dancing bear to honey. Sensing a media money shot, he walked over and greeted the jeering protesters who validated his brand as the shiniest lawman’s buckle in the Sunbelt.

In the car, heading to the airport, Arpaio recalled a caravan of 11 buses of protesters visiting his neck of Arizona to agitate against the state’s controversial law requiring police to check legal status of criminal suspects.

With a stand-up comic’s timing, he said the invasion turned out to be a political flop but a boon for the economy.

“It was one of our best months for hotels,” he smirked.

After a practiced pause, he drawled, “A few of them got free room and board.”

Where?

In the sheriff’s hospitality tents, tricked out in pink underwear and striped suits, enjoying spa-like treatment in a weight-reducing chain gang.

Then Arpaio started recounting the origin story of America’s most famous outdoor jail.

In the early ‘90s, Arpaio was tipped that people were drinking cat’s blood in Phoenix, which made the new sheriff’s blood boil.

“At the same time, the inmates (read: the animals) were destroying the plumbing in the jail,” he said.

Arpaio formed an animal-cruelty unit (with five detectives, no less) and moved abused dogs and cats into air-conditioned jail cells where they enjoyed meaty meals that cost twice as much as the unseasoned vegetarian meals served to inmates whom Arpaio moved into tents, surplus from the Korean War.

“Somebody has to protect the animals,” he deadpanned.

And somebody has to make criminals miserable enough to make them go straight, he suggested. (Unfortunately, the recidivism rate didn’t decline significantly during his tenure, but his national reputation spiked.)

You could argue that Arpaio, who tagged Trump early as his favorite candidate, contributed as much as anyone to the president’s view of law enforcement in the border region.

Seven years ago, I could not have dreamed of such an elevated role for a seemingly comic character who had made a mess of things.

As he climbed out of the car to catch his Southwest flight back home, Arpaio fished out a business card from his wallet and told me to look him up if I ever made it to Phoenix.

“I’ll take you to the tents,” he promised.

He made them sound like a wonderful circus, among the greatest shows on earth.

Earlier this year, the big tops were torn down. Maricopa County prisoners, no longer treated like clowns, have returned to four walls and three squares

But the Arpaio myth will endure for years to come, promoted by a president who sees in the iconoclastic sheriff’s career a model for his own My Way administration that can make Monty Python look comically uninventive.

If it all weren’t so unpardonably real, it would be really funny.

logan.jenkins@sduniontribune.com

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©2017 The San Diego Union-Tribune

Visit The San Diego Union-Tribune at www.sandiegouniontribune.com

Distributed by Tribune Content Agency, LLC.

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EDITORIAL: Trump abused authority by pardoning Arizona sheriff

By The Citizens' Voice, Wilkes-Barre, Pa. staff (TNS)

The United States famously is supposed to be a nation of laws rather than of men. That rule of law includes the separation of powers among the branches of the government.

That’s why President Donald Trump’s pardon of former Arizona Sheriff Joe Arpaio is disturbing on its own, but even more so in a broader context. It is another illustration that the president of the United States holds in contempt the rule of law that he is supposed to respect.

Arpaio, the former sheriff of Maricopa County, Arizona, made a national name for himself through draconian law enforcement and incarceration policies, including egregious civil rights violations that, ultimately, cost his county scores of millions of dollars in settlements.

Earlier this year he was convicted of contempt of court for defying a federal court order to stop racial and ethnic profiling and detaining people based only on his own suspicions rather than constitutionally required probable cause — in other words, for specifically defying the rule of law as determined by a federal judge.

“The only legally binding check on law enforcement is the authority of the judiciary to say what the law is,” said Noah Feldman of Harvard Law School. Issuing a pardon for someone who defies that authority “is breaking the basic structure of the legal order.”

Trump’s pardon puts him in league with that defiance, continuing a long pattern. Last year, for example, he claimed that U.S. District Court Judge Gonzalo Curiel could not be impartial in handling a case about Trump University because he was of Mexican descent.

The president has the legal authority to issue pardons. But by issuing one for a public official who has rejected the rule of law, Trump has abused that authority.

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©2017 The Citizens' Voice (Wilkes-Barre, Pa.)

Visit The Citizens' Voice (Wilkes-Barre, Pa.) at citizensvoice.com

Distributed by Tribune Content Agency, LLC.

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