--- title: Donald Trump Abused Pardon Power for Joe Arpaio description: According to Richard Nixon's counsel, the President's pardon of Arizona sheriff Joe Arpaio sets a dangerous precedent for months to come canonical: https://time.com/4966305/trump-arpaio-pardon-abuse/ author: John W. Dean article:opinion: true article:content_tier: free article:published_time: 2017-10-03T15:15:11.000Z article:modified_time: 2026-04-30T11:03:02.987Z article:section: Ideas og:title: Nixon Lawyer: Trump Abused Pardon Power When He Freed Arpaio og:description: 'This president is not troubled by the separation of powers' og:url: https://time.com/4966305/trump-arpaio-pardon-abuse/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt3a1a8930b5457150/6988e04086f68e138f6e6a96/donald-trump-joe-arpaio-pardon-abuse.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 og:image:width: 3000 og:image:height: 1688 og:image:alt: Donald Trump, Joe Arpaio og:type: article twitter:card: summary_large_image twitter:title: Nixon Lawyer: Trump Abused Pardon Power When He Freed Arpaio twitter:description: 'This president is not troubled by the separation of powers' twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt3a1a8930b5457150/6988e04086f68e138f6e6a96/donald-trump-joe-arpaio-pardon-abuse.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  # Nixon Lawyer: Donald Trump Abused Pardon Power When He Freed Joe Arpaio > Sponsored content. 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Inside TIME is the newsletter where TIME's Editor-in-Chief explains cover selection and the editorial reasoning behind major stories. It is free at time.com/newsletters. #### Who is the editor of TIME? Sam Jacobs is TIME's Editor-in-Chief. He writes Inside TIME, a twice-weekly newsletter about the newsroom's reporting and editorial decisions. #### Is Inside TIME free? Yes. Inside TIME is a free newsletter, available at time.com/newsletters. A paid TIME subscription is separate and available at time.com/subscribe-agent. by [John W. Dean](https://time.com/author/john-w-dean/) and [Ron Fein](https://time.com/author/ron-fein/) Oct 3, 2017 3:15 PM UTC  Republican presidential candidate Donald Trump is joined by Joe Arpaio, the sheriff of metro Phoenix, at a campaign event in Marshalltown, Iowa on Jan. 26, 2016. Republican presidential candidate Donald Trump is joined by Joe Arpaio, the sheriff of metro Phoenix, at a campaign event in Marshalltown, Iowa on Jan. 26, 2016. Mary Altaffer—AP by [John W. Dean](https://time.com/author/john-w-dean/) and [Ron Fein](https://time.com/author/ron-fein/) Oct 3, 2017 3:15 PM UTC During the last two days of his embattled presidency, [Richard Nixon](http://time.com/4775984/trump-nixon-james-comey/) made a rare principled decision. With the Watergate special prosecutor and congressional impeachment proceedings closing in, he rejected last-minute requests for pardons from his two former top aides, the men who could most damagingly testify against him. Unfortunately, while dust is settling on [Donald Trump’s pardon](http://time.com/4916920/donald-trump-pardons-joe-arpaio/) of former Arizona [sheriff Joe Arpaio](http://time.com/4917014/joe-arpaio-pardon-reaction-john-mccain-jeff-flake/), its message suggests a much cruder view of the [pardon power](http://time.com/4868418/donald-trump-presidential-pardons-backfire/), and sets a dangerous precedent for the months to come. Most [pardons](http://time.com/4933386/donald-trump-secret-pardon-law/) attract little attention. Over the course of a presidency, typical presidents, with the [advice](https://protect-us.mimecast.com/s/Dz6zBYtZpMRYCN?domain=t.sidekickopen05.com) of the Department of Justice, pardon or commute the sentences of [hundreds](https://www.justice.gov/pardon/clemency-statistics) of people who have moved beyond their crimes, and long after all investigations have ended. Sometimes, presidents issue pardons to try to help the nation move past bitter divisions, such Gerald Ford’s pardon of Nixon and Jimmy Carter’s general pardon of Vietnam draft dodgers. And occasionally, presidents issue pardons to friends, relatives, or supporters, and even at the request of a foreign government, such as Bill Clinton’s [controversial](http://www.nytimes.com/2001/02/18/opinion/my-reasons-for-the-pardons.html) pardon of fugitive financier [Marc Rich](http://www.npr.org/2016/11/01/500297580/more-surprises-fbi-releases-files-on-bill-clintons-pardon-of-marc-rich). But never has a president embroiled in scandal used the pardon power to protect _himself_. Nixon’s refusal provides useful history. On March 1, 1974, a federal grand jury indicted former chief of staff H.R. Haldeman, former chief domestic advisor John Ehrlichman, and five other aides for criminal conspiracy stemming from the Watergate cover-up. The president was exposed as well. To be sure, the Department of Justice took the position that a president cannot be indicted while in office. But the grand jury named Nixon as an unindicted co-conspirator. And before Ford pardoned him, he risked future prosecution. On August 7, Haldeman and Ehrlichman, employing different channels, [approached](http://www.nytimes.com/1974/09/14/archives/st-clair-linked-to-a-plea-by-haldeman-for-pardon-general-pardon.html) the White House and asked for pardons. They did not need to point out that the risk of prison time makes people more likely to testify. Yet Nixon rejected their request. The next day, he announced his resignation and submitted himself to fate. Gerald Ford later [pardoned](https://fordlibrarymuseum.gov/library/speeches/740061.asp) Nixon on September 8, 1974\. Haldeman and Ehrlichman each served 18 months in prison. Neither ever fully testified under oath; their accounts of the Watergate cover-up are found only in their White House recordings, and Nixon’s secret tapes. Later presidents have also declined to use the [pardon power ](http://time.com/4868504/donald-trump-5-times-president-issued-controversial-pardon/)to protect themselves from scandal. George H.W. Bush, who [may](https://www.amazon.com/Secret-War-Iran-Clandestine-Dangerous/dp/141655839X) have faced some legal [risk](http://nsarchive2.gwu.edu/NSAEBB/NSAEBB210/index.htm#1) from the Reagan administration’s Iran-Contra scandal, eventually pardoned several key figures — but long after anyone might have had an incentive to implicate him. Bill Clinton pardoned his former law partner, Susan McDougal, of charges stemming from the Whitewater deal — but only after she had already been released from prison. [Arpaio’s pardon](http://time.com/4919350/joe-arpaio-donald-trump-pardon-defense/) sent a signal that reverberated in Washington. For Trump’s current and former associates embroiled in [Special Counsel Robert Mueller’s Russiagate investigation](http://time.com/4953215/robert-mueller-investigation-what-we-know/), the message is unmistakable: don’t cooperate, and I’ll pardon you. First, the timing: Most presidents use clemency cautiously; “hot” pardons, if addressed, tend to come towards the end of a president’s final term. The fact that Trump is willing to pardon and praise a polarizing figure like [Arpaio](http://time.com/4919991/jorge-ramos-donald-trump-joe-arpaio-pardon-racism/) after just seven months in office is telling. It indicates that he will not likely worry about political blowback from pardoning former subordinates who could implicate him in wrongdoing, whenever he feels it is necessary. Second, the crime: [Arpaio was convicted of contempt of court](http://time.com/4545857/arizona-sheriff-joe-arpaio-charged/) for disobeying a court order. The pardon signals to Trump’s current and former aides that, if they are threatened with contempt for refusing to testify, he will pardon them too. This president is not troubled by the separation of powers. Third, the motive: There are not many other options for Trump to convey that message to former aides, such as former campaign chairman Paul Manafort and former national security advisor Michael Flynn, who are in the special counsel’s sights. If he tried to reassure them directly, it could constitute [witness tampering](https://www.law.cornell.edu/uscode/text/18/1512) or other [obstruction of a criminal investigation](https://www.law.cornell.edu/uscode/text/18/1510), in violation of federal law. In the Nixon impeachment proceedings, Congress [specifically cited](http://www.colorado.edu/AmStudies/lewis/1025/articlesNixon.pdf#page=6) Nixon’s various promises of executive clemency to induce various Watergate participants to plead guilty and refuse to testify. But one effective way to send the message that “if the heat gets too close, hold tight and I will pardon you” is to pardon _someone else._ Ideally, someone just as controversial — someone like Arpaio. That gives the president plausible deniability. [Manafort](http://time.com/4960331/paul-manafort-subpoena-dianne-feinstein-chuck-grassley/), Flynn, and other Trump associates understand the signal, but the president can deny that he encouraged them not to cooperate with law enforcement. The Framers were aware of this danger. In the Virginia constitutional ratification debates, George Mason criticized the pardon power, [arguing](http://teachingamericanhistory.org/ratification/elliot/vol3/june18/) that the president “may frequently pardon crimes which were advised by himself,” and so “destroy the republic.” James Madison replied that if there were grounds to believe that the president would use the pardon to “shelter” a person with whom he was “connected, in any suspicious manner,” then Congress could impeach him. Federal courts can also restrain a president’s abuse of the pardon power. To be sure, the Supreme Court has not held a presidential pardon invalid since [1915](https://supreme.justia.com/cases/federal/us/236/79/case.html), and under different circumstances. But the Justices have hinted from [time](https://supreme.justia.com/cases/federal/us/452/458/case.html#T9) to [time](https://supreme.justia.com/cases/federal/us/523/272/case.html#289) that at least _some_ clemency decisions might be open to challenge, and advocates are making [ solid legal arguments](https://freespeechforpeople.org/new-friend-court-brief-urges-court-reject-arpaio-pardon/) about why the Arpaio pardon crosses a constitutional line. Coming months will be critical. [Mueller](http://time.com/4950994/robert-mueller-investigation-documents-white-house/) appears to be moving aggressively — just ask Manafort and [Flynn](http://time.com/4789262/chris-christie-donald-trump-michael-flynn/). He has [advised the White House](http://time.com/4950994/robert-mueller-investigation-documents-white-house/) that he plans to interview six former and current aides. As the investigation closes in, the incentives for cooperation will increase, and so will the temptation for Trump to try to make it all go away. Before that happens, responsible members of Congress, the media and public should make clear that abuse of the pardon power by Trump to impedeMueller’s investigation will have the same consequences as firing the special counsel: Impeachment proceedings will commence immediately. ```json [{"@context":"https://schema.org","@type":"OpinionNewsArticle","@id":"https://time.com/4966305/trump-arpaio-pardon-abuse/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/4966305/trump-arpaio-pardon-abuse/"},"headline":"Nixon Lawyer: Donald Trump Abused Pardon Power When He Freed Joe Arpaio","datePublished":"2017-10-03T15:15:11.000Z","dateModified":"2026-04-30T11:03:02.987Z","description":"\"This president is not troubled by the separation of powers\"","url":"https://time.com/4966305/trump-arpaio-pardon-abuse/","keywords":["Donald Trump"],"thumbnailUrl":"https://static.time.com/v3/assets/bltea6093859af6183b/blt3a1a8930b5457150/6988e04086f68e138f6e6a96/donald-trump-joe-arpaio-pardon-abuse.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","author":[{"@type":"Person","name":"John W. 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