Donald Trump’s pardon of Joe Arpaio is a trial balloon for his Russia endgame
Presidents typically try to sneak in pardons at the end of their time in office, so the fallout won’t impact them politically. Donald Trump is pardoning racist criminal Joe Arpaio right now, just seven months into his term, for a few reasons. For one thing, his presidency is already washed up and he effectively has nothing more to lose by keeping his friend out of jail. But I believe this is also a trial balloon for what comes next.
Trump’s pardon of Arpaio is being predictably met with condemnation from all sides. Democratic and Republican Senators have been quick to speak out against the move (link). And the media has been equally quick to call him out for having tried to hide the pardon by announcing it on a Friday night in the midst of Hurricane Harvey. But I think he’s past the point of caring how it plays in the court of public opinion. I think he’s trying to signal to everyone involved that he’s willing to try to pardon the Russia scandal away.
It may not be a coincidence that two separate leaks surfaced today detailing how Special Counsel Robert Mueller is further squeezing Paul Manafort and Michael Flynn to try to get them to flip on Donald Trump (link). They’re likely both sitting at home tonight and interpreting Trump’s pardon of Arpaio as a signal that he’s willing to pardon them if they remain quiet instead of flipping. But it may backfire.
For one thing, there’s no legal consensus as to whether a president can pardon his own co-conspirartors in an alleged crime. Trump could pardon Manafort and Flynn, and the courts could end up throwing it out. But by accepting pardons, Manafort and Flynn would be admitting their guilt in legal terms. It would open the door for Mueller to force them both to testify against Trump, and they might no longer be able to invoke the Fifth Amendment, since they’d no longer be facing legal jeopardy themselves.
Much of this is uncharted Constitutional territory, because much of the power of the pardon has never been challenged. But I believe Donald Trump is trying to set up an even more uncharted finale: trying to pardon himself and his family. Legal experts Laurence Tribe and Richard Painter have jointly stated that Trump can’t pardon himself (link). But that doesn’t mean he won’t try on his way out the door. Arpaio is just a trial balloon to get the ball rolling on his pardon endgame.
