Americans like to talk about law as if it something real, something outside the thoughts and actions of men and women like us, even including us. This reification of law is part of a deep American faith, coexisting with other explicitly religious worldviews but no less structuring of our lives. Belief in the reality of law, an ethics which understands true law as synonymous with justice, an eschatology—a vision of history and hope for the future—in which such ideal law can come to be instantiated on this earth: such belief permeates American consciousness, if taken for granted and, thus, often invisible, unrecognized.
Law functions as what legal scholar Robert Cover famously called a “nomos,” a means of making sense of our world. As Cover pointed out, we see such worldviews most strikingly when they are not our own, when systems of commitment clash. Events such as these pull back the curtain, revealing law to be not some eternal model of justice but, alas, just-us, we the people struggling to interpret and enforce our own shifting values and advance our own often selfish interests.
Friday night’s hurricane-shrouded declaration, by President Trump, of his first presidential pardon stands as one such act. Exercising what he had described earlier this summer as a “complete power” of his position as chief executive, Trump pardoned former Maricopa County, Arizona, sheriff Joe Arpaio, who was facing a misdemeanor charge of contempt of court for continuing illegal racial profiling of Latinos despite a federal judge’s orders to stop.
Plenty of commentaries since Friday have located this move in relation to “incipient fascism” (which Charles Kaiser describes as “open encouragement of Nazis… a pardon without even pretending to go through the normal channels of the Justice Department,”) and even as an impeachable offense in its own right as a pardon “for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.” As Northwestern University law professor Martha Reddish has argued, “the Fifth Amendment’s guarantee of neutral judicial process before deprivation of liberty cannot function with a weaponized pardon power that enables President Trump, or any president, to circumvent judicial protections of constitutional rights.”
The pardon did not, however, come as a surprise. Days previous, at a campaign rally in Nevada, where Trump reiterated a worldview of crisis, pitting, in Margaret Talbot’s words, “the virtuous ‘we’ and the unspecified ‘they,’ who are trying to take away ‘our’ customs and culture; the ‘thugs,’ who protest the leader’s vision of America,” Trump had made clear that the Arpaio pardon was imminent. Pardoning “Sheriff Joe,” as Arpaio is known to his fans, allowed the President to stoke his shrinking base and served as a warning shot of his willingness to use his pardon powers, which may come into play as the Russia investigation proceeds.
Yet the act is more than merely self-protection or self-promotion: Trump, in pardoning Arpaio, is emphasizing a counter-vision of both law and law enforcement. The pardon, “part and parcel of the president’s ongoing feud with federal judges who don’t rule as he’d like” signals “that the limits of the law, and the powers of the courts, hold no weight in [Trump’s] decision-making, and indeed will be brushed aside at his convenience.” As Hilarie Bass, president of the American Bar Association, said in a statement from that organization, Trump’s act “undercuts judicial authority and the public’s faith in our legal system.”
Arpaio saw himself, in the position of sheriff, as law incarnate, which is to say above the rule of law. Even outside of the tent prison he proudly described as a “concentration camp,” from which he broadcast a live webcast from the toilet of the women’s holding cell, he used his position to raid the homes of journalists who were critical of him and arrested activists “who applauded when someone made critical remarks about Arpaio at a Board of Supervisors meeting,” on charges of disorderly conduct. Arpaio even “had a private investigator follow the wife of a judge who had ruled against him.” This is what Americans would traditionally call criminal activity, with Arpaio as a vigilante at best and a thuggish mob boss at worst.
Like Trump, he gained popular support as a peddler of conspiracy theories and through reality television, though in Arpaio’s case this involved teaming up with action star Steven Seagal for actual stunt raids. A celebrity self-promoter, obsessed with his poll numbers, his brand (all that was iconic at his “in-tents” jail—exposure to the elements, pink underwear, garbage food paired with televisions locked to the Food Network—was iconic of him), his solipsism was on display in a pre-interview clip from CNN where he fusses about his makeup and complains that he can’t even go out for pizza in New York without protestors complicating his night. In response to his pardon, he promptly took to Twitter to ask his fans for money.
In pardoning Sheriff Joe Arpaio, President Trump is not only reaffirming a vision of law and law enforcement rooted in the world of celebrity narcissism and cinematic fantasy, he is also reaffirming his commitment to a model of unchecked political power. Both men are quick to equate Arpaio’s action with legitimate law enforcement. Arpaio recently told Fox News he was merely “enforcing the law,” and remains convinced that he did nothing wrong. Trump holds that Arpaio was “convicted for doing his job.” He has, moreover, encouraged police officers to use violence on suspects. “Why show restraint?” the American president repeatedly asked police officers in Long Island, equating roughing up of suspects with the enforcement of law.
And it is an equation: for Trump, as for Arpaio, unchecked power—the violence of the state, aimed at citizens, at journalists, or at “illegals”—is not merely a prerogative, it is a good. This is their legal nomos, to use Cover’s term. Law, as understood by these two men, is not “rule of law” as a check on human passions or a guarantee of democratic equality, but, rather, a law of the strongman, the tyrant.
The Economist dismissed the pardon of Arpaio as “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.” Foreign Policy said: “In his capacity as the Chief Executive, the President has already had exceptional difficulty grasping and respecting the independent and impartial operation of federal law enforcement. With this act, Mr. Trump dramatically escalates the assault on these limits.” Speaking with the Washington Post, former U.S. Attorney in Arizona Paul Charlton said the pardon “speaks volumes about the President’s disregard for civil rights.”
But as Jonathan Blitzer reminds us, Trump and his administration have “spent the last six months trying to force local law-enforcement agencies to collaborate with ICE as Arpaio did.” His attitude on civil rights has been clear for some time, as has his attitude on—contempt for, desire to disregard—“the independent and impartial operation” of the Justice Department, which he would rather use as his own tool, his own weapon. “Legal checks and balances” have always been so much red tape to cut through, for Trump the real estate mogul and now Trump the populist president. Arpaio’s pardon is, quite literally, nothing exceptional for Trump; it reiterates longstanding commitments to an interpretation of law and law enforcement and, surely, serves as a preview for more of the same to come.
That so many voices seem shocked—shocked—by this pardon seems to me almost more disturbing than the pardon itself. This president has hardly kept his opinions to himself, and, after Charlottesville, his base of support’s rallying points and ideology is clearer than ever. This base shares with Arpaio a distrust of the press, a fear of immigrants, and a nostalgia for a time when America was tougher. Such toughness, as in Trump’s speech to police on Long Island, is imagined via a lens of movies and comic books, fantasies of “hard to kill,” Steven Seagal-type loners. And in those comic books and movies the “checks and balances” of the legal system were nothing but restrictions put on freedom by so many egg-headed elitists. Trump and Arpaio offer a vision where the gloves can come off.
The power to pardon fits with this particular legal nomos. It represents a presidential prerogative of startling scope. Indeed, this power, outside of the idealized world imagined by Alexander Hamilton in Federalist #74 (characterized by presidential “sense of responsibility,” plus “prudence and good sense”), fits uneasily with American democracy. Pardons are often suspicious, transparent acts of selfish political intervention—consider the first President Bush’s interference in two pending cases (along with pardoning one conviction and three guilty pleas) in relation to the Iran-Contra affair, or Bill Clinton’s pardoning of his own brother, who had a string of drug convictions, as well as financier and supporter Marc Rich.
Trump’s pardon of Arpaio, however, is at least consistent with his vision of the presidency and of American law and law enforcement—of what is necessary for and the meaning of “making America great again.” In the wake of the pardon, Dan Balz wrote that “President Trump has set his presidency on an unambiguous course for which there could be no reversal. He has chosen to be a divider, not a uniter,” but this has been clear since the inauguration, if not before. This presidency also continues on a course where legal restrictions are seen as themselves unjust, and where judges are seen as political operatives rather than arbiters of a system designed to apply equally to all.
This presidency continues to espouse a nomos—a worldview of law—in which checks and balances are constraints to be defied, fetters that must be broken, a nomos which Arpaio, in his theatrical cruelty and public contempt for the legal system, exemplifies.
The “we” and the “they” from Trump’s Phoenix rally can be identified, in part, along these lines: dueling conceptions, among Americans, about the rule of law, our legal institutions, about the value of checks and balances, about the definition of justice or its abuse.