“It’s Even Worse Than You Think!"

Trump's recent attacks on the legitimacy of law enforcement have a history. Take a look at this excerpt from “It’s Even Worse Than You Think: What the Trump Administration Is Doing to America.”

by

In late August 2017, Donald Trump flew to Phoenix, Arizona, to hold a rally for the 2020 election. To those who heard his entire speech and understood the context, his remarks raised troubling, even frightening, new concerns about the future of America as a democracy under law.

Phoenix signaled an important change in Trumpian rhetoric that revealed just how far his

contempt for the rule of law could go. He replaced his many wink-wink and dog-whistle comments—subtext intended to be understood by his fellow racists, but not most people—with a rhetorical bullhorn. He aimed the message at two audiences. One consisted of his die-hard supporters, some of whom told television journalists that any effort to remove Trump via impeachment would be met with violence, perhaps even a civil war.

The other audience consisted of Republicans in Congress who might be thinking that Trump was a danger to the nation or the Republican Party—and needed to go. Journalists and anyone who might challenge Trump also came in for a not at all subtle threat that he could pursue them using the powers of the presidency, if only to harass them.

Phoenix signaled an important change in Trumpian rhetoric that revealed just how far his contempt for the rule of law could go.

Given the rapidly advancing Russia investigation by special counsel Robert Mueller, Trump’s need to signal to Capitol Hill Republicans that they had better stay quiet or face the wrath of Trump voters in 2018 was pressing. He signaled that those who were with him would be protected, if necessary, with pardons or clemency. They would not be held accountable for lawless behavior, no matter how egregious, provided it was in Trump’s personal or political interests to shield them.

Trump’s support for former Arizona Sheriff Joe Arpaio, whose pardon Trump had hinted at for days, exemplified Trump’s protection of those he liked or whose allegiance he needed to shield himself from the Mueller probe.

In Phoenix, Trump quickly riled up the crowd by attacking the legitimacy of the law enforcement people who had brought Arpaio to justice through years of diligent work, culminating in his July 2017 conviction for criminal contempt of court for brazenly violating a federal judge’s order again and again. Trump made it seem as if Arpaio was railroaded.

“So, was Sheriff Joe convicted for doing his job?” Trump asked. The crowd responded with shouts of “yes!”

The responses grew louder when Trump went on to declare his intent to pardon Arpaio. Playing coy with the audience, Trump said, “I won’t do it tonight because I don’t want to cause any controversy.” He waited for the applause to die down before adding, “I’ll make a prediction: I think he’s going to be just fine.” (Trump pardoned Arpaio three days later.)

The President, who less than a month after taking office had tweeted that journalists are “the enemy of the American people. SICK!,” then launched into an angry and unscripted denunciation of journalists. “It’s time to expose the crooked media deceptions,” he told the crowd. “They’re very dishonest people.”

Following his promise to pardon Arpaio with an attack on journalists made perfect sense from Trump’s perspective. What would discredit an Arpaio pardon would be widespread knowledge of what Arpaio had done, which would happen only if national journalists reported the facts about his decades of lawless behavior.

Arpaio was criminally convicted for not doing his job. Instead of enforcing the law under the Constitution’s rules, Arpaio ran roughshod over the rights of people based on their appearance or accent. But it was thumbing his nose at a federal judge who had ruled that he must stop his illegal roundups, his public boasting that he would never obey, that made him a convicted criminal. And that was not what Trump wanted his audience, or anyone else, to know.

Following his promise to pardon Arpaio with an attack on journalists made perfect sense from Trump’s perspective.

Arpaio tried to purge Phoenix of Latinos, not just people who entered the United States without permission. “They hate me, the Hispanic community, because they’re afraid they’re going to be arrested. And they’re all leaving town, so I think we’re doing something good, if they’re leaving,” Arpaio said in a 2009 television appearance.

In 2008, Arpaio referred to one of his jails as his “concentration camp.” Just as Trump denies saying things despite videos recording his words, Arpaio later denied at a press conference that he said that despite videotape of his remarks.

In a 2001 interview with the network news program 60 Minutes, Arpaio proudly confirmed that his office spent $1.15 per day on food for each jail dog, but only 90 or 95 cents for inmate food. He said he was protecting taxpayers.

That was far from the worst of it. From 1995 through 2015, sheriff’s records examined by the Phoenix New Times showed that 157 of Arpaio’s prisoners died in custody. That was a death rate far out of line with other large jails. A fourth of the dead were reported as suicides. Not on the official list of deaths was Deborah Braillard, a diabetic who pleaded for insulin. Jailers waved off her requests, saying she was just a heroin addict kicking a habit. When Braillard grew visibly sick, fellow inmates pleaded on her behalf to no avail as over the hours her condition deteriorated from vomiting to convulsions to coma to death.

Braillard’s death from denial of medical care was no isolated case. Arpaio’s jail staff often denied medical treatment or delayed it for hours. Women in childbirth were shackled to beds, even those being held before trial on suspicion of nonviolent crimes. At least one woman’s child was stillborn because deputies refused medical care.

Arpaio’s jail staff often denied medical treatment or delayed it for hours.

Sometimes Arpaio’s department fabricated criminal charges against those who questioned his conduct. One Arpaio critic, Israel Correa, said he was arrested when he could not produce his driver’s license fast enough to please a deputy who had stopped him. He said his declarations that he was born in Arizona were derisively dismissed as he was handcuffed and hauled off to jail.

In a chilling indication of conduct that Trump regards as legitimate, Arpaio’s deputies  arrested or obtained criminal charges against Mary Rose Wilcox, a former county supervisor; Gary Donahoe, a superior court judge; and Dan Saban, a candidate for Arpaio’s job. There were also middle-of-the-night raids to roust from their homes Mike Lacey and Jim Larkin. Together, they owned the Phoenix New Times, the weekly newspaper that had fearlessly documented Arpaio’s misconduct for years. Taxpayers eventually paid $3.75 million to settle the wrongful arrest case brought by Lacey and Larkin. Don Stapley, a former county supervisor, received $3.5 million in an unrelated case over false charges.

Two weeks after Arpaio was found guilty, Trump gave an off-air interview with a television pundit working for Fox News, the reliably Trump-supporting cable channel.

“Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” Trump asked Fox’s Gregg Jarrett. “He has protected people from crimes and saved lives. He doesn’t deserve to be treated this way.” Jarrett said Trump also called Arpaio “a great American patriot.”

The case against Arpaio began during the George W. Bush Administration, and the decision to prosecute for criminal contempt came during the Obama era. It was during the Trump Administration that Arpaio was tried for criminal contempt of court and convicted.

That Trump is thinking about using pardons to compromise the Mueller investigation was beyond doubt after the Phoenix rally. Yet Trump’s willingness to do so is fraught with peril for himself and the Republic.

Pardons are for “offenses against the United States.” By accepting a pardon, a person admits guilt for committing the crime. Anyone who believes he or she is innocent is free to reject a pardon.

The Constitution also gives the President the power to grant reprieves, such as letting a prisoner get out of jail early, without settling the issue of guilt or innocence. Such clemency is not optional. If the President orders someone freed from prison or otherwise relieved of criminal punishment, that person cannot say no.

Pardons can be issued preemptively, before any criminal charges are brought, as President Gerald Ford did when he relieved Richard Nixon and the country of the prospect of Nixon being tried for a host of felonies, including conspiracy and income tax evasion (for which Nixon’s lawyer did go to prison).

By accepting a pardon, a person admits guilt for committing the crime. Anyone who believes he or she is innocent is free to reject a pardon.

That explains why strategically issuing pardons and reprieves would likely occur late in the Mueller probe and those by House and Senate committees. The problem for Trump is that anyone who accepts a pardon loses his or her Fifth Amendment right against self-incrimination. If you have been pardoned, you cannot be tried and therefore must testify in criminal proceedings and before Congress. Lying in such proceedings, including falsely claiming you cannot recall something, subjects you to prosecution for that criminal conduct.

Nothing in the Constitution would prevent Trump from issuing serial pardons, either. Thus he could pardon someone who had evidence that Trump would not want used against him, and if the person was indicted for refusing to testify, he could pardon them again even before they were found guilty of contempt of court.

Presidential pardons apply only to “offenses against the United States.” This means that state prosecutors are free to bring charges for crimes within their jurisdiction, which helps explain why Mueller’s team is working with Eric Schneiderman, the New York State attorney general. Should Trump pardon, for example, his sons or his son-in-law, or Paul Manafort, his former campaign manager, or others, Schneiderman would be free to bring state-level charges.

To appreciate the importance of the shift Trump made during his Phoenix rally, from wink-wink to open dismissal of the rule of law, we must review what Trump said a month earlier to police on Long Island. He made a speech full of gore, urging official lawlessness, with anecdotes that have no basis in fact and may well have been delusional.

Trump focused his Long Island talk on La Mara Salvatrucha, a Latino gang sometimes called MS-13.

“We’re going to restore safety to our streets and peace to our communities, and we’re going to destroy the vile criminal cartel MS-13 and many other gangs,” he said. Trump linked the gang to undocmented immigrants from south of the border even though many MS-13 gang members are American citizens or lawful residents. In doing so he blurred distinctions, suggesting that all Latinos in America are at least suspect.

“MS-13 is particularly violent,” Trump continued. “They don’t like shooting people because it’s too quick, it’s too fast . . . . They like to knife them and cut them, and let them die slowly because that way it’s more painful, and they enjoy watching that much more. These are animals.”

Trump’s bloody description of murder by torture for pleasure was not one of his frequent fabricated or delusional comments. There was indeed an MS-13 case that fit his description. But it was a crime of passion. A teenage love triangle in Virginia ended with a furious stabbing, followed by arrests. It was, in other words, not the kind of crime that should frighten people not involved with the gang. And it was not the kind of crime that any degree of law enforcement can prevent.

The rest of Trump’s speech strayed further from the truth. “We have your backs—believe me—we have your backs 100 percent,” he told the group. “Not like the old days.”

This was another of Trump’s many remarks suggesting that Democrats in general and especially Barack Obama were antipolice and supported criminals. MS-13 operated, Trump alleged, “because of weak political leadership, weak leadership, weak policing, and in many cases because the police weren’t allowed to do their job.”

Again, there is no evidence that any mayor has held police back from investigating crimes by MS-13 or that police were “weak” in performing their duties. But Trump has a long and well-documented history of making stuff up and, when called on it, asserting that someone told him or he saw it on the Internet or he never said it.

Trump went on to promise military-grade weapons for police. Resuming his gory theme, he said MS-13 members “slash them with machetes, and they stab them with knives. They have transformed peaceful parks and beautiful, quiet neighborhoods into bloodstained killing fields. They’re animals.”

Trump assured his audience that he has a firm line on dealing with those who have engaged in violence. “I spoke to parents, incredible parents,” he told the Long Island police. “I got to know so many parents of children that were so horribly killed—burned to death, beaten to death, just the worst kind of death you can ever—stuffed in barrels.”

The rest of Trump’s speech strayed further from the truth.

There is not a single reported case in Long Island or the rest of the United States of children being burned to death or beaten to death and stuffed into barrels by gang members, nor any evidence of Trump ever having spoken to parents of victims of such crimes.

Long Island was then described by Trump, who grew up on the island’s western portion in Queens, as a war zone, a description that no one among the nearly eight million people who live on Long Island would recognize.

“One by one, we’re liberating our American towns,” the President said. “I never thought I’d be standing up here talking about liberating the towns on Long Island where I grew up, but that’s what you’re doing.”

No one laughed at the ridiculousness of what he said. None of the uniformed officers standing behind Trump even rolled their eyes or looked at their shoes. Many news accounts gave it passing mention or none, so accustomed had politics reporters become to Trump’s fashioning stories out of whole cloth.

In case anyone at his Long Island talk hadn’t already gotten the message that because of these crimes—real or imaginary—police should ignore the Constitution, Trump offered up his preferred way of handling gang members after an arrest.

“When you see these thugs being thrown into the back of a paddy wagon—you just see them thrown in, rough—I said, please don’t be too nice. Like when you guys put somebody in the car and you’re protecting their head, you know, the way you put their hand over? Like, don’t hit their head and they’ve just killed somebody—don’t hit their head. I said, you can take the hand away, okay?”

The “don’t be too nice” remark drew hearty laughter from the assembled police officers. But it was too much for the police brass in Suffolk County, where Trump spoke.

"The President... condoned police misconduct regarding the treatment of individuals placed under arrest by law enforcement."

“As a department, we do not and will not tolerate roughing up of prisoners,” the Suffolk County police headquarters soon tweeted. Across the country, police chiefs denounced Trump’s remarks. The International Association of Chiefs of Police said treating everyone, including criminal suspects, with “dignity and respect” is “the bedrock principle behind the concepts of procedural justice and police legitimacy.”

Chuck Rosenberg, a career prosecutor who was acting head of the Drug Enforcement Administration, sent an email to its more than ten thousand employees telling them, “The President, in remarks delivered yesterday in New York, condoned police misconduct regarding the treatment of individuals placed under arrest by law enforcement . . . . I write because we have an obligation to speak out when something is wrong.” Rosenberg said police “must earn and keep the public trust and continue to hold ourselves to the very highest standards.”

Two months later, Rosenberg resigned, telling associates that he feared Trump lacked respect for the rule of law.

The logical implication of Trump’s remarks in Phoenix and on Long Island is that he would repeal the laws, procedural rules, and moral standards that protect the rights of everyone, including suspects. That is how it is done in Russia, whose autocratic leader Trump praises at every opportunity, along with the autocratic rulers of the Philippines, Saudi Arabia, and Turkey—three other nations whose leaders keep their people in line.

Trump’s clear statements at these two events left no doubt that he hopes to create an America with two standards of justice, one for his supporters and one for everyone else. His first federal budget proposal supported this interpretation.

In fact, the record shows that Trump tried to stop the Arpaio prosecution. He asked Attorney General Jeff Sessions to intercede, just as he had asked James Comey to drop the FBI investigation of retired General Michael Flynn, Trump’s first National Security Adviser. Sessions, like Comey, declined. Sessions even told Trump that his request would be improper, three people with knowledge of the conversation told The Washington Post.

Calling off an FBI investigation, or initiating one for political or personal reasons, could be an impeachable offense and, after removal from office, prosecutable as a felony.

Trump’s clear statements at these two events left no doubt that he hopes to create an America with two standards of justice, one for his supporters and one for everyone else.

Under long-standing protocols, White House staff generally cannot even talk directly to Justice Department lawyers about potential or pending cases, except in some matters of national security. In 2007, when George W. Bush was President, the Justice Department issued precise rules limiting contact on matters civil and criminal as well as pardons. Most inquiries must go through high-level Justice Department officials and the White House counsel, to ensure that “the laws of the United States are administered and enforced in an impartial manner.”

The Constitution does not require that Presidents follow or even give a nod to the Justice Department guidelines. But Presidents who have bent or ignored the guidelines have touched off firestorms of criticism, including from Jeff Sessions. As a Republican senator from Alabama with a long pedigree of hard-line law-and-order positions, Sessions expressed outrage in 2014 over President Obama’s decision to let nonviolent drug offenders apply for clemency because he thought many such sentences were excessive.

“An alarming abuse of the pardon power,” Sessions declared. “If this latest unilateral action becomes the norm, then what kind of Pandora’s box has the President opened? Can a President pardon all people convicted of financial fraud, or identity theft, or unlawful re-entry into the country, or any category of crime when Congress does not act as the executive wishes?”

Given the standard Sessions set for changing the rules on merely asking for mercy, the Arpaio pardon should have ignited the Attorney General’s fury. He said nothing. 

David Cay Johnston is a Pulitzer Prize-winning investigative reporter and bestselling author of The Making of Donald Trump.

From It’s Even Worse Than You Think: What the Trump Administration Is Doing to America, by David Cay Johnston. Copyright © 2018 by David Cay Johnston. Reprinted by permission of Simon & Schuster, Inc.