"Lock Joe Up" signs were spotted all around the Phoenix Convention Center when Trump visited.EXPAND
"Lock Joe Up" signs were spotted all around the Phoenix Convention Center when Trump visited.
Zee Peralta

Can He Do That? A How-To Guide for Presidential Pardons

In elementary school, School House Rock taught us the basics about the checks and balances system. A quick refresher — the different branches of government basically keep the president from taking over as king.
That is not the case, however, for a presidential pardon.

Many critics of Trump have asked if he could legally follow through on his promise and then his hint that he will pardon former sheriff Joe Arpaio. The answer is yes. And there's nothing anyone can do about it.

Not White House officials. Not the Supreme Court. Not even Congress.

The Constitution gives the president an absolute power to pardon, Arizona State University Professor of Law Paul Bender said.

“Some parts of the system are not democratic and this is one of them," Bender said. "It’s hard to think of other [examples where] the president is not subject to anyone else’s control.”

Now a pardon for Arpaio would be legal, but that doesn't mean it wouldn't be a little unusual.

The power to pardon is usually used as a way to absolve someone of their sins. It's important to note that these sins have to be on a federal level. Clemency often happens under the conditions that that person has served their time, is no longer dangerous, or is ill or ailing.

So far, Arpaio doesn't seem to fit any of those categories. But he is a longtime Trump supporter and, despite Trump's questionable loyalty, that seems to stand for something.

“The important thing people need to understand is that there doesn’t have to be a reason," Bender said. "He can do it for no reason at all.”

It's no question that while this potential pardon would be kosher legally, it would certainly be controversial.

Trump himself addressed this the night of his Phoenix rally, saying "I won’t do it tonight because I don’t want to cause any controversy" after not so coyly saying Arpaio will be "just fine." 
Controversial pardons, while not unprecedented, are not definitely not the norm. 

Two key ones include President Gerald Ford's first pardon of President Richard Nixon before Nixon was even charged as a result of the Watergate scandal.

The other happened on the last day in office for President Bill Clinton when he pardoned longtime donor to the Clinton Foundation, Marc Rich, after Rich had fled to Switzerland to avoid his 65 criminal counts of various fraud.

This is not how it goes for everyone, of course, just those with money and notoriety.

For the average criminal, the clemency process is a lot more waiting and a lot more paperwork. Most no-name convicts serve their time, wait five years, apply for clemency through the Justice Department, and then wait some more for the White House to review their application.

If they are lucky enough to be pardoned by the president, it's most likely because they were denied parole but are deemed to no longer be a threat. It very rarely makes headlines, as the average president makes hundreds of pardons, although that has been declining in recent years.

In most cases, Bender said, a presidential pardon is just that — a pardon, a free pass, a get-out-of-jail-free card. It's not to say that the receiver is not guilty. Quite the opposite. They were guilty, but the country is looking past that.

That's why this potential pardon for Arpaio stings so much for many people. It sends a message that Trump is overlooking or even accepting Arpaio's misdeeds — ones that Arpaio has openly bragged about in the press.

But, if it happens, it happens. There's no going back. Pardons are considered not to be reviewable, Bender said.

The Trump (pardon) train is unstoppable.

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