The announcement that President Trump on Friday night had pardoned former Maricopa County Sheriff Joe Arpaio for criminal contempt of court sent shockwaves across the legal and political spectrum. Many immediately chalked up the controversial move by the president as an act of political patronage given Arpaio’s outspoken support during the presidential campaign and the two men’s similar views on combating illegal immigration. The larger and more overtly strategic message being conveyed by the president, however, has nothing to do with Arpaio. This abrupt decision, bereft of customary vetting and review by the Justice Department, almost certainly has everything to do with one matter alone: the ongoing investigation into alleged collusion between the president’s campaign and the Russian Government, and President Trump’s desire to allay the concerns of his erstwhile campaign associates.
The ongoing #RussiaGate probe, now led by Special Counsel Robert Mueller, continues to weigh heavily on the mind of the president. White House staffers and Senate Republicans routinely leak to the media stories of the president’s obsession with Mueller’s investigation, and his demand that his political allies “protect” him from it. Mueller, meanwhile, has continued to tighten the legal noose around at least two former senior Trump aides, former National Security Advisor Michael Flynn and former campaign chairman Paul Manafort. Media reports indicate Mueller has relied upon two separate grand juries to authorize subpoenas of Flynn’s business records, to authorize a pre-dawn raid of Manafort’s home, and to compel sworn testimony by various Manafort associates.
Mueller’s investigation also has begun to ensnare members of Trump’s own family. Jared Kushner and Donald Trump, Jr. are both in a bit of legal hot water. Kushner’s inexplicable difficulties in properly completing his security clearance paperwork and outlining the extent of his ties to Russian nationals has raised questions about whether there is something he is trying to conceal. Trump, Jr., of course, infamously bit hard on an offer from a Russian business connection to meet in the midst of the presidential campaign to receive opposition research materials that were going to be provided by the Russian Government.
The president’s loyalty to his son and son-in-law is unbreakable, at least for now, and that loyalty is no doubt reciprocated by both men with respect to the president. The same cannot necessarily be presumed for the likes of Flynn and Manafort (or their respective subordinates). Both men had long careers prior to working for President Trump, and the president cannot expect that they will be willing to take the fall for him for any criminal misconduct that may have occurred during the course of the campaign. At the same time, “flipping” Flynn or Manafort (or both, if possible) is presumably part and parcel of at least one aspect of Mueller’s current investigative strategy. Building a case against the two men, and using the leverage of potentially severe criminal penalties to strike a deal in exchange for their testimony about the inner workings of the Trump campaign, would be an understandable path for Mueller to pursue. If there was a crime committed within an organization, any reasonable prosecutor would operate under the assumption (until shown evidence to the contrary) that involvement in it went all the way to the top. A fish stinks from the head down, and there was no one more senior in the campaign than President Trump himself.
By demonstrating his willingness to issue pardons without bothering with the trouble of bureaucratic due diligence or concerns about political backlash, President Trump has sent out a subtle and implicit message to Flynn and Manafort: hang tight, I have your back. He undoubtedly is attempting to forestall either of the two men (or their subordinates) from cooperating with Mueller beyond what’s legally required, with the unspoken reassurance hanging over the investigation that the President can wipe their criminal slates clean if Mueller gets too close.
In an “ordinary” presidency, predicting such brazen contempt for the legal process by a president in order to limit his own legal exposure would be viewed with understandable skepticism. Say what you will about Bill Clinton’s eye-raising pardon of Marc Rich, or George W. Bush’s commutation of the sentence of Scooter Libby, but at least those decisions did not implicate efforts to protect the presidents themselves from legal trouble.
The same could not be said for the current occupant of the Oval Office. The pardon power of the presidency is absolute, and President Trump is making clear his willingness to use it in unconventional circumstances as he sees fit. With the threat of conviction in a theoretical impeachment proceeding still politically unlikely, we are all in store for a historical case study in how well our constitutional republic can accommodate the methods of someone like President Trump.
One can only hope we all live to tell about it.