Following up his wink-wink promise to pardon Arpaio in the future with an attack on journalists made perfect sense from Trump’s perspective, though it was not at all obvious to casual observers. What would discredit an Arpaio pardon would be widespread knowledge of what Arpaio had done, which would happen only if national journalists reported the facts about his decades of lawless behavior.
Arpaio was criminally convicted for not doing his job. Instead of enforcing the law under the Constitution’s rules, Arpaio ran roughshod over the rights of people based on their appearance or accent. But it was thumbing his nose at a federal judge who had ruled that he must stop his illegal roundups, his public boasting that he would never obey, that made him a convicted criminal. And that was not what Trump wanted his audience, or anyone else, to know.
Trump then tried to call into question the legitimacy of the trial in which Arpaio was convicted of criminal contempt of court. “He should have had a jury,” Trump said.
It was Arpaio’s choice to be tried by Judge Susan R. Bolton rather than a jury, but to those not familiar with how the criminal justice system works, Trump left the impression that Arpaio had been railroaded.
Arpaio tried to purge Phoenix of Latinos, not just people who entered the United States without permission. “They hate me, the Hispanic community, because they’re afraid they’re going to be arrested. And they’re all leaving town, so I think we’re doing something good, if they’re leaving,” Arpaio said in a 2009 television appearance.
In 2008, he referred to one of his jails as “my concentration camp.” Just as Trump denies saying things despite videos recording his words, Arpaio later denied at a press conference that he said that despite videotape of his remarks. In a Trumpian move, Arpaio turned the tables on the reporter who brought this up, fabricating a story that “concentration camp” was part of an accusation others concocted to harm him.
In a 2001 interview with the network news program 60 Minutes, Arpaio proudly confirmed that his office spent $1.15 per day on food for each jail dog, but only 90 or 95 cents for inmate food. He said he was protecting taxpayers.
That was far from the worst of it. From 1995 through 2015, sheriff’s records examined by the Phoenix New Times showed that 157 prisoners died in custody. That was a death rate far out of line with other large jails. A fourth of the dead were reported as suicides. The sheriff’s office listed 34 people as simply found dead in jail, 37 dying in the county hospital with no explanation why, and 39 as suicides by hanging.
Not on the official list of deaths was Deborah Braillard, a diabetic who pleaded for insulin. Jailers waived off her requests, saying she was just a heroin addict kicking a habit. When Braillard grew visibly sick, fellow inmates pleaded on her behalf to no avail as over the hours her condition deteriorated from vomiting to convulsions to coma to death.
Braillard’s death from denial of medical care was no isolated case. Arpaio’s jail staff often denied medical treatment or delayed it for hours. Women in childbirth were shackled to beds, even those being held before trial on suspicion for nonviolent crimes. At least one woman’s child was stillborn because deputies refused medical care. Women prisoners, more than a thousand of whom over the years were pregnant, got their water from a well contaminated with mouse feces, which can carry the Toxoplasma gondii parasite and thus put their fetuses at risk of blindness and lifelong ill health.
Sometimes Arpaio’s department fabricated reasons to investigate and, in some cases, obtain criminal charges against those who questioned his conduct. One Arpaio critic, Israel Correa, said he was arrested when he could not produce his driver’s license fast enough to please a deputy who had stopped him. His said his declarations that he was born in Arizona were derisively dismissed as he was handcuffed and hauled off to jail. When he got his wallet back he said $2,000 was missing. It was not the only complaint by Hispanics that Arpaio’s deputies robbed them.
In a chilling indication of conduct that Trump regards as legitimate, Arpaio’s deputies arrested or obtained criminal charges against Mary Rose Wilcox, a former county supervisor; Gary Donahoe, a superior court judge; and Dan Saban, a candidate for Arpaio’s job. There were also middle-of-the-night raids to roust from their homes Mike Lacey and Jim Larkin. Together, they owned the Phoenix New Times, the weekly newspaper that had fearlessly documented Arpaio’s misconduct for years. Taxpayers eventually paid $3.75 million to settle the wrongful arrest case brought by Lacey and Larkin. Don Stapley, a former county supervisor, received $3 million in an unrelated case over false charges.
Two weeks after Arpaio was found guilty, Trump started focusing the thoughts of those who would attend his Phoenix rally the next week. It began with an off-air interview with a television pundit working for Fox News, the reliably Trump-supporting cable channel.
“Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” Trump asked Fox’s Gregg Jarrett. “He has protected people from crimes and saved lives. He doesn’t deserve to be treated this way.” Jarrett said Trump also told him, “I am seriously considering a pardon for Sheriff Arpaio. He has done a lot in the fight against illegal immigration. He’s a great American patriot and I hate to see what has happened to him.”
Not a skeptical word from Jarrett, a lawyer, who on Fox’s Sean Hannity show told only part of the story. Jarrett called the case a “political prosecution that began in the Obama administration,” speaking more like Arpaio’s lawyer than a news analyst.
The case began during the George W. Bush administration and the decision to prosecute for criminal contempt came during the Obama era. It was during the Trump administration that Arpaio was tried for criminal contempt of court and convicted.
That Trump is thinking about using pardons to compromise the Mueller investigation was beyond doubt after the Phoenix rally. While the pardon power appears to have no limits, other than using it to prevent impeachment, Trump’s willingness to use it is fraught with peril for himself and the Republic. Using pardons strategically could seriously hamper the Russia and other investigations.
Pardons are for “offenses against the United States.” By accepting a pardon, a person admits guilt for committing the crime. Anyone is free to accept or reject a pardon, as a principled person might who believes that he or she was innocent and had been wrongly convicted. There are plenty of examples of people who refused to say they committed a murder, rape, or other crime just to get out of prison, even if it meant staying behind bars until they died.
Anyone who accepts a Trump pardon, including Arpaio, is admitting he committed offenses against the federal government. But there is a way around this. The Constitution also gives the president the power to grant reprieves, such as letting a prisoner get out of jail early, without settling the issue of guilt or innocence. Such clemency is not optional. If the president orders someone freed from prison or otherwise relieved of criminal punishment, that person cannot say no.
Pardons can be issued preemptively, before any criminal charges are brought, as President Gerald Ford did when he relieved Richard Nixon and the country of the prospect of Nixon being tried for a host of felonies, including conspiracy and income tax evasion (for which Nixon’s lawyer did go to prison).
That explains why strategically issuing pardons and reprieves would likely occur late, not early, in the Mueller probe and those by House and Senate committees. The problem issuing pardons poses for Trump is that anyone who accepts a pardon loses his or her Fifth Amendment right against self-incrimination. If you have been pardoned, you cannot be tried and therefore must testify in criminal proceedings and before Congress. Lying in such proceedings, including falsely claiming you cannot recall something, subjects you to prosecution for that criminal conduct.
Nothing in the Constitution would prevent Trump from issuing serial pardons, either. Thus, he could pardon someone who had evidence that Trump would not want used against him, and if the person was indicted for refusing to testify, he cou
ld, as with Arpaio, pardon them again even before they were found guilty of contempt of court.
Presidential pardons apply only to “offenses against the United States.” This means that state prosecutors are free to bring charges for crimes within their jurisdiction, which helps explain why Mueller’s team is working with Eric Schneiderman, the New York State attorney general. Should Trump pardon, for example, his sons or his son-in-law, or Paul Manafort, his former campaign manager, or others, Schneiderman would be free to bring state-level charges. To appreciate the importance of the shift Trump made during his Phoenix rally for the 2020 campaign from wink-wink to open dismissal of the rule of law, we need to go back and review what Trump said a month earlier to police on Long Island, remarks he harked back to in Phoenix. He made a speech full of gore, urging official lawlessness, with anecdotes that have no basis in fact and may well have been delusional.
Trump focused his Long Island talk on La Mara Salvatrucha, a Latino gang sometimes called MS-13.
“We’re going to restore safety to our streets and peace to our communities, and we’re going to destroy the vile criminal cartel MS-13 and many other gangs,” he said. Trump linked the gang to all illegal immigrants from south of the border even though many MS-13 gang members are American citizens or lawful residents. In doing so he blurred distinctions, suggesting—even if unintentionally—that all Latinos in America are at least suspect.
“MS-13 is particularly violent,” Trump continued. “They don’t like shooting people because it’s too quick, it’s too fast. I was reading—one of these animals was caught—in explaining, they like to knife them and cut them, and let them die slowly because that way it’s more painful, and they enjoy watching that much more. These are animals.”
Seven times Trump called the gang members animals. Vicious as any criminal may be, one of our great historical advances has been treating all people as human beings and applying the rule of law even to those who commit despicable acts. Under the Constitution that Trump swore to faithfully uphold, every individual human being is innocent, even after being arrested and charged, until proved guilty beyond a reasonable doubt. Animals, on the other hand, have no such rights. A vicious dog can be shot on the spot.
Trump’s bloody description of murder by torture for pleasure was not one of his frequent fabricated or delusional comments. There was indeed an MS-13 case that fit his description. But it was a crime of passion. A teenage love triangle in Virginia ended with a furious stabbing, followed by arrests. It was, in other words, not the kind of crime that should frighten people not involved with the gang. And it was not the kind of crime that any degree of law enforcement can prevent.
The rest of the speech strayed farther from the truth. “We have your backs—believe me—we have your backs 100 percent. Not like the old days. Not like the old days.” This was another of his many remarks suggesting that Democrats in general and especially Barack Obama were antipolice and supported criminals, a charge that surveys show has gained some currency with the public despite the lack of any factual basis.
MS-13 operated, Trump continued, “because of weak political leadership, weak leadership, weak policing, and in many cases because the police weren’t allowed to do their job. I’ve met police that are great police that aren’t allowed to do their job because they have a pathetic mayor or a mayor [who] doesn’t know what’s going on. . . . But hopefully—certainly in the country, those days are over. You may have a little bit longer to wait. But from now on, we’re going to enforce our laws, protect our borders, and support our police like our police have never been supported before. We’re going to support you like you’ve never been supported before.”
Again, there is no evidence that any mayor has held police back from investigating crimes by MS-13 or that police were “weak” in performing their duties. But Trump has a long and well-documented history of making stuff up and, when called on it, asserting that someone told him or he saw it on the Internet or he never said it.
Trump went on to promise military-grade weapons for police. Resuming his gory theme, he said MS-13 members “slash them with machetes, and they stab them with knives. They have transformed peaceful parks and beautiful, quiet neighborhoods into bloodstained killing fields. They’re animals.” The references to machetes had an interesting antecedent.
In Phoenix, a middle-aged black man sat right behind Trump so the cameras captured him, as they did at many Trump events. “TRUMP & Republicans Are Not Racist” was stenciled on his T-shirt.
He goes by the name Michael the Black Man, but when he was known as Maurice Woodside, he was part of the Temple of Love, a Miami cult whose leader had drifters grabbed at random and killed, their ears taken as trophies. Perceived enemies of the cult were tortured to death. Sometimes they were slowly beheaded with dull machetes. The cult leader and most of his top aides were convicted of a host of crimes, but the jury acquitted Woodside after he took the stand, sang a childish song about being a sheep, and offered nonsense statements. One of the prosecutors called it acquittal by mercy. Interviewed after the Phoenix rally by Jon Hotchkiss of factbox.tv, Woodside delivered one of his many strange monologues, saying among other bizarre statements that Hillary Clinton keeps slaves.
That Trump denounces MS-13 and calls its members animals yet repeatedly has Woodside seated squarely behind him at rallies, shows how Trump manipulates the public into thinking he enjoys broad support among African Americans and that he has a firm line on dealing with those who have engaged in violence.
“I spoke to parents, incredible parents,” Trump told the Long Island police. “I got to know so many parents of children that were so horribly killed—burned to death, beaten to death, just the worst kind of death you can ever—stuffed in barrels.” There is not a single reported case in Long Island or the rest of the United States of children being burned to death or beaten to death and stuffed into barrels by gang members, nor of Trump ever having spoken to parents of victims of such crimes. This paralleled his claims that many of the people who died when the Twin Towers collapsed in 2001 were his friends. Trump did not attend a single funeral, as would be expected if Trump considered anyone who died that day a friend.
Long Island was then described by Trump, who grew up in Queens at the urban western portion of the island, as a war zone, a description that no one among the nearly eight million people who live on Long Island would recognize.
“One by one, we’re liberating our American towns,” the president said. “Can you believe that I’m saying that? I’m talking about liberating our towns. This is like I’d see in a movie: They’re liberating the town, like in the old Wild West, right? We’re liberating our towns. I never thought I’d be standing up here talking about liberating the towns on Long Island where I grew up, but that’s what you’re doing.”
No one laughed at the ridiculousness of what he said. None of the uniformed officers standing behind Trump even rolled their eyes or looked at their shoes. Many news accounts gave it passing mention or none, so accustomed had politics reporters become to Trump’s fashioning stories out of whole cloth.
In case anyone missed the message that because of these crimes—real or imaginary—police should ignore the Constitution, Trump offered up his preferred way of handling gang members after an arrest. “When you see these thugs being thrown into the back of a paddy wagon—you just see them thrown in, rough—I said, please don’t be too nice. Like when you guys put somebody in the car and you’re protecting their head, you know, the way you put their hand over? Like, don’t hit their head and they’ve just killed somebody—don’t hit their head. I said, you can take the hand away, okay?”
The “don’t be too nice” remark drew hearty laughter from the assembled police officers. But combined with the last remark it was too much for the police brass in Suffolk County, where Trump spoke. “As a department, we do not and will not tolerate roughing up of prisoners,” the Suffolk County police headquarters soon tweeted. They may have reacted in part beca
use the department had had its independence taken away, forcing it to operate under the aegis of the U.S. Justice Department, because of a history of discriminating against Latinos, including failure to investigate hate crimes.
From New York to New Orleans to Los Angeles, police chiefs denounced Trump’s remarks on mistreating prisoners, some saying that even if intended in jest, they were utterly inappropriate. Many expressed disgust at the applause from uniformed officers standing behind the president. The International Association of Chiefs of Police criticized Trump without naming him. It said treating everyone, including criminal suspects, with “dignity and respect” is “the bedrock principle behind the concepts of procedural justice and police legitimacy.”
A stronger message came from the Police Foundation, which encourages research to develop more effective law enforcement strategies to deal with crime. Its president invoked a powerful word to suggest that Trump was profoundly immoral and malevolent. “We cannot support any commentary—in sincerity or jest—that undermines the trust that our communities place in us to protect and serve,” said Jim Bueermann, a retired California police chief. “That is what separates us from evil as we follow the rule of law.”
Chuck Rosenberg, a career prosecutor who was acting head of the Drug Enforcement Administration, sent an email to its more than ten thousand employees telling them, “The President, in remarks delivered yesterday in New York, condoned police misconduct regarding the treatment of individuals placed under arrest by law enforcement. . . . I write because we have an obligation to speak out when something is wrong. . . .We must earn and keep the public trust and continue to hold ourselves to the very highest standards. Ours is an honorable profession and, so, we will always act honorably.”
Two months later Rosenberg resigned, telling associates that he feared Trump lacked respect for the rule of law.
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