The End of the Rule of Law?

On July 31, 2017 U.S. District Court Judge Susan Bolton ruled that former Sheriff Joe Arpaio was guilty of “flagrantly” disregarding an order by federal District Court Judge G. Murray Snow to halt the immigration round-ups for which he had become famous. Arpaio instead continued the practice, bragging at one point that he would “never give in to control by the federal government”. For his defiance of the court Judge Bolton found him to be guilty of criminal contempt, a misdemeanor for which he could have faced up to six months confinement.


But that will not come to pass because President Donald J Trump announced on Friday that he was pardoning Arpaio, an early “birther” who had announced his support for Trump’s presidential run early on. The pardon surprised no one because Trump had telegraphed it a few days prior at a raucous rally when he said “He should have had a jury, but you know what? I’ll make a prediction…I won’t do it tonight, because I don’t want to cause any controversy . . . But Sheriff Joe can feel good.”


So let’s cut to the chase. President Trump exercised his Constitutional prerogative to grant a pardon to a law enforcement officer. The law enforcement officer in question, Joe Arpaio, willfully refused to carry out a lawful court order to cease and desist in his illegal activities. In addition, Arpaio violated his oath of office to uphold the Constitution of the United States. Moreover, Arpaio has shown no remorse for his illegal behavior, which would almost certainly still be ongoing, had the voters not shown the good judgment to toss him out of office.


In pardoning Arpaio, Trump made it clear that neither he, nor his supporters, need to feel constrained by the rule of law. It is of a piece with his refusal to fully and forthrightly single out and condemn Nazis and the KKK at Charlottesville, VA. What matters for Mr. Trump is who you are and where you sit. It is about power, not justice. In this President Trump is fully simpatico with the “social justice” warriors and critical legal theorists of the left.


But in pardoning Arpaio, Trump has not only attacked the separation of powers; the way he did so doing effectively eviscerates the entire Constitutional architecture. Consider the point of the separation of powers as described by James Madison. Writing as Publius in Federalist 51 he said:


“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”


But here we have a situation in which the President of the United States is dismantling those auxiliary precautions. Consider, we have a law enforcement official, Joe Arpaio, who was found to have systematically violated Constitutional rights. In response the President (1) praised and pardoned him, (2) rolled over the judiciary, and (3) sent an unmistakable signal that Constitutional violations by law enforcement officials will be rewarded if the violations are aimed at the right target.


It wasn’t too long ago that the Obama Administration was busy refusing to enforce the law. For instance, Obama ordered the IRS not to enforce the Obamacare mandates. And speaking of the IRS, there was that little matter of Lois Lerner weaponizing the agency against Tea Party groups. Not to put too fine a point on it, the Justice Department acted like a legal defense firm for Hillary Clinton during the non-investigation of her e-mail account.


When the Obama Administration simply refused to enforce laws it didn’t like, or were politically inconvenient, some Republicans pointedly asked what the reaction would be if a future Republican President were to simply announce e.g., that he was “suspending” capital gains taxes. In light of where we are today, it was a prescient question. After all, for blatantly political purposes a nominally Republican President has pardoned an unrepentant convicted criminal who flagrantly and deliberately violated Constitutional rights that he had sworn to protect.


In pardoning Arpaio the way he did, Trump violated his oath to “…preserve, protect and defend the Constitution of the United States”. That oath requires that the President “…take care that the laws be faithfully executed”. But to the contrary, President Trump rewarded a law enforcement officer and political ally who willfully ignored a court order to cease and desist violating the law. Not only does that signal a willingness to tolerate, if not celebrate, lawlessness by government officials, it further undermines law enforcement by sending a signal to Trump allies that they will be taken care of if they are under investigation.


There is a reasonably good case to be made that these actions cross the threshold into political “High Crimes and Misdemeanors” referenced in Article II, Section 2, that authorizes the removal of a President from office by impeachment and conviction. But there is a two fold political problem. First, the Republicans are terrified of Trump voters even as he proceeds to destroy their party. Second, the Democrats have no problem with executive over reach, as evidenced by their quiescence during Obama years—they just want to be the ones doing it.

And so we have an entire political establishment that, for its own purposes, is willingly acquiescing in the destruction of the rule of law in the United States. Isn’t bipartisanship terrific?



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