Without doubt, he had every intention of doing it last night in Phoenix. Onstage, with Sheriff Joe beside him and an adoring crowd around him, he could have indulged his royal and theatrical instincts all at once. It would have been one of the most satisfying moments of his presidency, I’m sure. But at some point John Kelly must have pulled him aside and said, “No. No, no, no, no, no, no, no. NO.” Just too dodgy to pardon a guy who’s been attacked by the left as a racist for years so soon after the Charlottesville uproar. (An ACLU petition opposing a pardon for Arpaio is already over 100,000 signatures.) So Trump held off.
The White House has prepared the paperwork for President Trump to pardon former sheriff Joe Arpaio when he makes the final decision to do so, CNN has learned.
An administration official said the White House has also prepared talking points to send to surrogates after he is pardoned.
One of the talking points is that Arpaio served his country for 50 years in the military, the Drug Enforcement Administration and as Arizona’s Maricopa County sheriff, and that it is not appropriate to send him to prison for “enforcing the law” and “working to keep people safe.”
Par for the course: This would be an unorthodox move by the president, defying standard procedure. The DOJ has an entire office devoted to handling pardon requests, as there’s an enormous volume of them to process. Typically the Department sticks to felony cases involving long sentences where the applicant has already done hard time, not ticky-tack fouls like Arpaio’s misdemeanor conviction for contempt, for which he hasn’t even been sentenced yet. They usually require a formal application too, which Arpaio hasn’t bothered with, and they have a set of standards they consider in weighing whether to recommend a pardon to the president. One standard is “Acceptance of responsibility, remorse, and atonement”: “A petitioner should be genuinely desirous of forgiveness rather than vindication.” Arpaio, however, has insisted that he was railroaded in being found guilty of contempt. He’s at the front of the line for a pardon not because his case is egregious or his sentence draconian but because he’s a friend and prominent supporter of the president. Since the pardon power is plenary, though, Trump can do whatever he likes here. If he wants to toss DOJ guidelines out the window and show a little clemency to a pal, that’s his prerogative.
But when? If you’re John Kelly, worried about the optics of an Arpaio pardon, what’s the opportune time to do it politically? I assume the White House wants this done before Arpaio’s sentencing on October 5th, not after. That would spare Arpaio the public embarrassment of having the sentence imposed, and I think Trump would enjoy the display of power involved in short-circuiting a judicial process while it’s still playing out rather than swooping in afterward with a “get out of jail free” card. (Pay attention, Bob Mueller!) If I’m right that it’ll happen before October 5th, there are three obvious opportunities.
1. Labor Day weekend. Take advantage of a slow news period when people aren’t paying much attention. Trump’s base will still hear about it.
2. Save it for a moment when he’s under fire from his base for having sided with the “globalists” on something and needs to be bailed out. If he ends up blinking after threatening a shutdown last night over funding for the border wall, he’ll need a way to soothe populists. Pardoning Arpaio would be an easy pander.
3. Do it whenever but hide it in a crowd of pardons for other offenders. Obviously a pardon for Arpaio would be big news, but if he issued it along with a few dozen acts of clemency for especially sympathetic offenders in federal prisons, it would blunt the blowback and hand him some good press to go with the heat. Hey — he could even be cheeky and pardon Hillary. That would be bigger news than the Arpaio pardon, crowding it out of the media, and would let Trump play the “magnanimous” victor while telegraphing to the country that he thinks Clinton is a criminal. It’d be pretty funny. And there’s nothing the president enjoys more than a good troll.
Here he is last night in Phoenix hinting as strongly as he can that Arpaio’s going to end up with a pass.