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President Trump did not announce a pardon for former Sheriff Joe Arpaio on Tuesday night — but he may as well have.
The president teased the crowd with his support for the anti-immigration crusader who is facing jail time on a criminal contempt conviction, saying “he should feel fine.”
Introducing the topic after a long rant against the media, Trump asked the amped-up audience, “Do the people in this room like Sheriff Joe?”
Trump didn't say the word "pardon," but left little doubt about his plans.
After the applause subsided, he continued: "Was Sheriff Joe convicted for doing his job? He should have had a jury, but I'll make a prediction: I think he's going to be just fine. I'm not going to do it tonight because I don't want to cause any controversy … but he should feel fine."
In the days leading up to the rally in Phoenix on Tuesday night, there was talk of whether the president might announce the issuance of the first pardon of his presidency at the rally.
Arpaio, who was defeated for reelection in 2016, was one of the most outspoken officials opposing former President Obama’s immigration policies in favor of harsh immigration enforcement.
He is awaiting sentencing, scheduled for Oct. 5, after being found guilty of criminal contempt in July. The contempt conviction followed what US District Judge Susan Bolton called a “flagrant disregard” for an earlier court order barring Arpaio from enforcing immigration detention policies that the court had found were not legal.
Arpaio rose to national prominence for harsh treatment of prisoners, and an overwhelming focus on undocumented immigrants. That approach on immigration put him squarely in line with Trump’s campaign promises of strict crackdowns on immigration — the now-president often refers to Arpaio simply as “Sheriff Joe” — and made Arpaio an important symbolic figure among immigration advocates and Democrats in Arizona.
In a story published on Aug. 14, Fox News reported that Trump said he is “seriously considering a pardon” for Arpaio.
That report, linked with Trump’s scheduled visit and aggressive posture on immigration enforcement policies — including Attorney General Jeff Sessions’ recent speech in Miami criticizing Chicago’s sanctuary city policies — led to the talk that Trump might use the Phoenix rally to announce a pardon for Arpaio.
On Tuesday, however, Sarah Huckabee Sanders said Trump would not be announcing any pardon of Arpaio at the Tuesday event or surrounding trip, telling reporters about Air Force One, “There will be no discussion of that today at any point, and no action will be taken on that front at any point today.”
Trump, however, certainly has shown a proclivity to act unilaterally when he feels that staff are holding him back or when he plays to a crowd, as he did on Tuesday night in Arizona.
In Sanders’ earlier statement, she clearly did not rule out the possibility of a future Trump pardon of Arpaio, which, functionally, the former sheriff wouldn’t need until sentencing.
As detailed by BuzzFeed News previously, the president’s pardon power is virtually unlimited when it comes to federal crimes — including criminal contempt.
In fact, it’s been nearly 100 years since then-Chief Justice William Howard Taft wrote definitively, “Nothing in the ordinary meaning of the words ‘offenses against the United States’” — the Constitution’s grant of the pardon power to the president — “excludes criminal contempts.”
To the extent such pardons continued to the point of — or with the aim of — preventing courts from enforcing laws, Taft was blunt: "Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President."