THE powers of pardon bestowed on an American president—modelled on those enjoyed by English monarchs in centuries past—are so sweeping and awful that they impose their own discipline on chief executives, or so Alexander Hamilton predicted in Federalist 74. The responsibility of deciding the fate of a fellow-creature will “naturally inspire scrupulousness and caution,” wrote Hamilton. What is more, a president would so “dread” being accused of misusing those powers in a fit of “weakness or connivance”, that he will use them with the utmost “circumspection.”
For all his brilliance, Hamilton could not foresee the election of a president like Donald Trump, for whom acts of unblushing, explicit, crowd-pleasing connivance are a proof of cleverness. Nor could Hamilton guess that partisan factions would one day so divide the republic that a for-profit propaganda industry would cheer on a president for abandoning both scruples and caution.
But that is where America finds itself today. As evidence, consider Mr Trump’s pardon for Joe Arpaio, the demagogic, conspiracy-peddling, publicity-seeking former sheriff of Maricopa County, Arizona. Mr Arpaio, an early and vocal supporter of Mr Trump’s anti-immigrant policies and a longtime darling of conservative talk-radio and TV hosts, was finally ejected from office by his own voters in 2016 after being convicted of criminal contempt, for willfully defying court orders to stop using race and ethnicity as grounds for pulling over local residents, in pursuit of immigrants without legal status. By the time he was defeated, Mr Arpaio, 85, had cost the county tens of millions of dollars in legal bills, including settlements after his department was found guilty of unlawful violence in its jails, in some cases leading to deaths.
A presidential pardon, in the words of Supreme Court justices over the years, is intended as an “act of grace”—a forgiveness of a crime that has been proven, and of guilt that has been accepted by the perpetrator. The underlying idea is that public policy may sometimes make it wise to temper the harsh edges of the rule of law—for instance when insurrectionists need to be persuaded to drop their arms (as when George Washington pardoned tax-hating farmers during the Whiskey Rebellion).
Mr Trump and his cheerleaders have a different explanation for Sheriff Joe’s pardon. The authoritarian showman is being pardoned, the president has signalled, because he did nothing wrong in the eyes of “patriots” who know how police powers should really be used. That is not an act of grace. It is an act of nullification by stealth: the highest office-holder in the land saying that legal checks and balances are so much politically correct nonsense.
Mr Trump winked and nodded at the upcoming pardon in a splenetic, rambling 76-minute speech in Phoenix earlier this week. “I won’t do it tonight because I don’t want to cause any controversy,” he said, after asking the crowd: “Was Sheriff Joe convicted for doing his job?”
“I’ll make a prediction: I think he’s going to be just fine,” Mr. Trump told his supporters. In tweets the president called Mr Arpaio an “American patriot” who “kept Arizona safe.”
Not all would agree with that assessment. Lexington travelled to Maricopa County last year and met both Sheriff Joe and Joe Penzone, the no-nonsense former cop who defeated him. Phoenix is a deeply divided city—a place to see the demographic clash that the writer Ron Brownstein has called “the grey versus the brown.” On one side, its sun-baked sprawl is filled with silver-haired white retirees from across the country, many of them intensely conservative. They live alongside young families who are increasingly Hispanic and non-white.
Mr Arpaio, who styled himself “America’s toughest sheriff”, is an authoritarian impresario. He housed county prisoners outdoors in tents, even as temperatures reached 145°F (63°C), made them wear pink underwear and put them in chain gangs, sending them to cut weeds or clean roads in the affluent suburbs where his supporters lived. He recruited a posse of volunteer sheriff’s deputies, who sport police uniforms and roar about in patrol cars. In 2011 Mr Arpaio assigned a five-member “cold-case posse”, financed by conservatives across the country, to investigate whether Barack Obama had faked evidence of his birth in America (the sheriff argued that Mr Obama had indeed faked his birth certificate, making him an early ally of Mr Trump, who used the racially charged “birther” conspiracy to launch his own career in nativist politics).
While lesser rivals acquired more minor military hardware from the Pentagon, Mr Arpaio secured a tank (actually a self-propelled Howitzer). He made the action-film star Steven Seagal a posse member and let him drive that tank through a local man’s garden wall in search of illegal cockfighting (policing animal cruelty was a crowd-pleasing staple of the sheriff’s work). Sheriff Joe’s fans cheered when he ordered immigration sweeps that targeted people who appeared to be non-white or Hispanic. He was an early Trump backer, declaring: “Everything that I believe in, he believes in.”
By the time of the 2016 election Mr Arpaio already faced charges for criminal contempt, after allegedly defying court rulings to stop racial profiling. He had been rebuked for setting private investigators on a judge investigating him. The Pentagon asked for its hardware back after several weapons were lost. Mr Penzone, a veteran Phoenix police sergeant, ran for sheriff as a Democrat on the message that citizens’ money had been squandered and that law enforcement had suffered. He promised to close the “tent city” jail, noting that it was half-empty and cost taxpayers a fortune. That back-to-work message won Mr Penzone 158,000 more votes than Hillary Clinton received in Maricopa County, as he picked up support from Republicans embarrassed by or tired of Mr Arpaio. In other words, those Americans who know Mr Arpaio best had already rejected him by the time Mr Trump swooped in to bestow his blessings on his work.
In his own tweets after his pardon, Mr Arpaio called his conviction “a political witch hunt by holdovers in the Obama justice department.” He included a link to a website seeking donations to pay off his legal fees.
Senator John McCain of Arizona, for one, was unimpressed by suggestions that chest-thumping patriotism, as judged by conservative citizens, trumps the rule of law. “No one is above the law,” declared Mr McCain, a Republican. “The individuals entrusted with the privilege of being sworn law officers should always seek to be beyond reproach in their commitment to fairly enforcing the laws they swore to uphold.”
Mr McCain’s words are stirring but out of date. In Mr Trump’s America, those who make the right crowds roar and stamp their feet need fear no reproach.