President Trump’s Friday pardon of Joe Arpaio, who was Sheriff in Maricopa County, Arizona, and who was found guilty of criminal contempt last month for disregarding a court order in a racial profiling case, is a dangerous step in the direction of a constitutional crisis in the United States. Arpiao, who was not yet sentenced and who has been one of the harshest critics of immigrants who are unlawfully present in the United States, was a favorite of those who are hostile to immigration. Because of its unusual character, Trump’s pardon is not only a political act, but also a challenge to the legal system. Trump spoke about Arpaio in a recent rally held in Arizona indicating that the sheriff would be OK. However, Trump waited until late Friday to make the decision, probably to reduce the media coverage it was sure to generate.
This decision sets a dangerous precedent in that it undermines the predictability of the legal system. The predictability of how the law will be applied is a hallmark of a free society and what differentiates it from a tyranny. In the end, there is only one choice, the rule of law or rule by law. Rule of law means that all of us are equally treated by the law. The essence of the rule of law is that an individual can predict in advance with reasonable certainty how he or she will be treated by the American legal system for a transgression of its rules. Rule by law means that instead of the courts, an individual in power can decide who should and who should not be punished for conduct that crosses the line on what is required by the law. In short, the decision in circumstances like this one, is whether a court judge or the President should make the decision. This case sets the dangerous precedent that the President will be the arbiter of what is right and what is wrong in America. Legally speaking this is not what the constitution intended.
Although this is just one pardon and nobody can argue the President does not have the executive authority to grant such pardons, that’s not the point. The point is whether this is the first of many pardons to come under a Trump Presidency? It is not the proper role of the President to exempt individuals from the rulings of the legal system whenever he likes. For America to work as a country it is necessary for the President to respect and abide by the rulings of the judicial system. In the days ahead we can expect a great deal of debate on this theme. A power struggle between the executive and judicial arms of the U.S. government is a crisis American society cannot afford. While it is a tradition that at the end of a President’s term the President can pardon certain individuals whose cases are brought to the President for consideration through a vetting process, that is not what happened here. What if President Trump does not like how other individuals who seek to implement his programs are treated by the courts? Will he use his pardon power to protect them? Will only those who are beholden to him be safe from prosecution? Will it matter what the courts decide? These are important issues we can expect to be debated in the days ahead.
For immigrants in the United States, this decision is a step in the wrong direction. It signals to them that those who take improper measures to remove immigrants from the United States will be immune from the law. This is not only one more unwelcome initiative against immigrants, but one that threatens the legal system that exists to protect everyone in America.
This article is reprinted from an article formerly published in the Forbes.