Bloomberg Law: Wright and Mariotti on Arpaio Pardon (Audio)

as well as national leaders, condemned the pardon. Congressman ralg Rehalva, a Democrat from Arizona, says it was Trump's wink wink nod, not to his very extreme basse. Jora Pile became an icon to the ultright, became an icon to UH Neo Nazis and white supremaciy across this country. You're excusing and pardnering their symbol. It's an encouragement and it embolds them more.

And that's how good. Arizona Republican Senator John McCain in a statement, and that pardoning our Pio undermines Trump's quote claim for the respective rule of law. As Mr R. Pio has shown no remorse for his actions. Joining us as guests are Andrew Wright, professor at Havanna at Savannah Law School, and Renando Mariotti, a partner at Thompson Coburn and a former federal prosecutor. Andrew Trump has criticized federal judges and court rulings. He tried to stop a federal investigation.

According to James Comeby's testimony, is this pardon any different any more shocking? Well, in one sense, it's more shocking than these other attacks because in this case, our pious the specific crime that he was convicted of was his willful disobedience from federal court orders to stop violating people's constitutional right. So this was a direct attack in the sense in one sense the president of the power to

partner our pile. But the reasons for it are very troubling because the president not only didn't expect an admission of guilt from our pile, but he actually endorsed the conduct by saying that he did a good job in his tweets. So I think the message to the judiciary is loud and clear that their ruling was not enforced and that the president undermines the message they were trying

to send for respect for their proceedings. We're not. This was done in a way that is unusual for presidential pardons in that, you know, you didn't have a lengthy Justice Department review first, and it's you know, put aside at getting announced late on a Friday night. Does the procedural difference here from most pardons amplify that message in anyway? Well, you know, it's a great question, I think in and of itself, go, you know, doing away with procedure doesn't

bother me. I mean, you could imagine that, you know, for example, they're they have often been cases where civil rights leaders were you know, hit with court orders from racist judges. For example, you know, you know, you know, somebody had been protesting the KKK and got a you know, one week sentence, and the president decided to rush to get that personal pardon. I would applaud that. I think

a lot of Americans would. I think what's what's concerning here is, as Andy pointed out, obviously the conduct by Sheriff Arpeo was essentially flaunting a court order, doing so deliberately, showing no remorse whatsoever, something as knows at the law, and so when you're in a rush to get that guy a pardon. Um, it suggests that you're trying to help your your friends, your associates, um, without regard for the effect that that may have on the respect for

the law and the judicial system. Andy, A lot of legal experts said it was unlikely that our Pio would be sent to prison, and there was about a six month sentence ahead, but he had a clean record before that, so in his age. So why did Trump do this? Is it a signal to those who might be tempted to make deals with this special counsel Muller as the Russia probe gets closer to Trump that not to worry,

I'll protect you. Well, it was certainly a message to what President Trump considers his hardcore base, to signal to them his support of one of their heroes, which is unfortunately largely populated by the alt right and white supremacists. As as it relates to Russia, you know, it's it's it's kind of a dangerous proposition to use this as a trial balloon for Russian um pardons because in the Russian context, those are self protective and that kind of

self dealing makes the politics even worse. As bad as the politics here were. Um, it will make look you know, Trump look like he's doing it for a self interested way, I think. Um. And also there are some legal problems that come from Russia pardons um for the people involved in that. They can to sort a Fifth Amendment right not to testify in front of Congress or grand jury if they don't face legal jeopardy, uh, for for the

conduct that they're being questioned about. So, you know, without predicting Trump behavior, which I think is a fool's errand I would say that there are certainly some arguments that would suggest that that might even be worse than this. So I wouldn't uh, you know, if I were lawyers for those people that might be seeking those pardons, um, I would be giving mixed advice to them about the

nature of this signal nano. As Our Pio's case was headed towards trial in the spring, Trump asked Attorney General Jeff's Sessions whether it would be possible for the government to drop the criminal case against Our Pio, according to the Washington Post, and after talking with Sessions, Trump decided to let the case go to trial and if Our Pio were convicted, he could grant clemency. According to the Post, is there a problem with Trump approaching Jeff Sessions in

that way? All right, that's a very interesting way of putting the question. I think let's let me take a step back for a minute and say, first of all, it's it's highly unusual for the president to ask the attorney general to drop a case or to end an investigation of an associate or friend of his. I think it's inherently problematic. Um. It is um something that at the very least is can create a significant um um

appearance of impropriety. And I believe the Post story said that Sessions or and others indicated to the President that it was, you know, uh, not appropriate for him to do, and that's why he dropped it. And I think it is it is especially interesting and especially important because, as we know, um, there are allegations made by former FBI Director James Comey that the President made a similar request

of him regarding the investigation of Michael Flynn. And you know, there's also been reports that that Mr Muller is investigating, um an obstruction charge based upon that conduct. Uh. And if I is investigating an obstruction yards based upon the president's UH statements regarding ending the Flynn investigation or the Russia investigation. This would be a very important data point for me because this gives us a second instance where the president is asking, uh, the asking law enforcement to

drop a UM investigation of one of his friends. And it brings, uh, you know, it brings to mind, um, you know the fact that that UM Mr Mueller is going to have to would have to prove to prove obstruction the president's corrupt intent, and the best way to prove intent is through somebody's words and actions and through their pattern of behavior. So I think that this this incident could be actually very important for Mr Mueller and

his investigation. Andy following up on you know, possible consequences here UM, Noah Feldman wrote at Call on Bloomberg viewed recently about if you know before the part was issued, saying if the pardon, if the President pardoned Share for a PIO, that it would be the kind of abuse of constitutional authority that could conceivably be grounds for impeachment. And he noted that you know, James Madison said that abuse of the pardon power could be a grounds for impeachment.

Are is it possible that that you know, there may be those kinds of consequences for the presidents as a result of this. It's a really good question. I mean, you know, impeachment power is an argument, a political argument about the law, and so the way you know, it's not just whatever the Congress decides, um, but it's also not a legal technical definition of what high crimes and

misdemeanors is. And maladministration or abuse of power can rise to a sufficient level that that could certainly be grounds for you know, the House of Representatives to decide to move forward with impeachment hearings as a theoretical matter, and you know, I think certainly abuse of the pardon powers one of those core abuse is that was within the minds of the framers when they drafted the provision, because we're supposed to be a country with it's a rule of law and not a rule of men, and the

pardon power can absolve people of their legal violations, and so that's why it's such a delicate power to use, even though it's quite important power to make corrections or meet out mercy in certain cases. So you know, as a as a practical political matter, um, there's not a lot of appetite for Republicans that hold the gavels to

move forward with impeachment hearings. However, I will just say that the president has been deteriorating his political environment repeatedly, and every time the you know, he attacks the Senate leader, Republican leader Mitch McConnell or Paul Ryan, feels forced to put out a statement condemning this or that that the

president is done. He's definitely not aiding his cause politically. Um. And then, of course theeen elections could change the composition of the chambers, especially in the House side, and that could we could really be talking about something else because these issues are going to be remaining there whoever is in charge of Congress after twenty eighteen election cycle. So I think that, you know, this is the kind of thing that is the kind of grave abuse that could

rise to the level of that kind of consideration. But you have to get the tipping point first where Congress is motivated to move forward with impeachment considerations. Renato. Many presidents have been criticized over their pardons, the pardons that they've given, and is basically though the pardon power except for what Andy was just discussing unlimited virtually unlimited? Is there any is there are there any restrictions on it? So the legal matter, the pardon powder power is basically

unlimited or virtually unlimited. I wrote a piece for the Hill a couple of weeks ago in which I argued that pardoning yourself I think would not be permissible um under the Constitution. I think is just a practical matter. I don't think courts were um endorsed. You know, if that pardon was ultimately challenged in court, I don't really think a court would uphold a pardon where you have

a president committing crimes and then pardnering himself. Just you can imagine the potential consequences that that could come if a president could do that. Um. Other than that or you know, some sort of absurd result or result that's that you can make an argument from the text that hey,

you have to partner another person. I don't think there's any limit, and I think that, you know, really the question is what can the president you know, in terms of partnering, is what could the president do that that that would cause Congress to take action because otherwise, um. The only other argument I've heard about limiting pardons would be if a pardon was itself part of a scheme to obstruct justice. Thank you both so much for being

on Bloomberg Law. That's we're not on. Marianti, a partner at Thompson Coburn and Andrew Wright, professor at Savannah Law School.