DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional

DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional

We previously reported on the Court proceedings after President Trump unconditionally pardoned former Sheriff Joe Arpaio after he was found guilty of criminal contempt of court.

There was a lot of speculation that the Judge setting an October 4 hearing on Arpaio’s motion to dismiss the case and vacate all prior Orders was a sign the Judge considered the pardon of suspect effectiveness.  I explained why the scheduling of a hearing did not warrant such speculation, Overblown hype about Court scheduling oral argument in dismissal of Arpaio conviction:

The Judge in the case, who made the criminal contempt finding, has issued an order (pdf.) to hold oral argument on the motion to dismiss….

This report has led to furious speculation that the Judge will contest the legal effect of the pardon on Arpaio’s conviction….

….  I can’t read the Judge’s mind, but the scheduling of oral argument does not appear to be controversial or unexpected — Arpaio seeks to vacate not just the conviction but all prior orders in the case, and Arpaio’s own lawyers recognized that oral argument would be needed and so requested.

In advance of the hearing, DOJ (which prosecuted the case) had until today to submit its response to Arpaio’s motion. DOJ filed its response (pdf.) and it agrees with Arpaio:

The President issued a “Full and Unconditional Pardon” to defendant Joseph M. Arpaio (“Defendant”), whom this Court found guilty of criminal contempt for willfully disobeying a preliminary injunction issued in a civil case. Having accepted the presidential pardon, Defendant now moves to vacate the verdict and all other orders and to dismiss this case with prejudice. ECF 220. A pardon issued before entry of final judgment moots a criminal case because the defendant will face no consequences that result from the guilty verdict. Accordingly, the government agrees that the Court should vacate all orders and dismiss the case as moot.

The government agreeing with Arpaio doesn’t end the issue. The court on its own could consider the legal effectiveness of the pardon.

Several groups are seeking to submit amicus briefs arguing that the court should reject the pardon as unconstitutional.

The arguments are all similar to that laid out in the proposed brief (pdf.) by Berkeley Law Dean Erwin Chemerinsky, Criminal defense attorney and former law professor Michael E. Tigar, and attorney Jane B. Tigar. The core argument is that criminal contempt of court is not an “offense” against the United States:

The President’s purported pardon of Mr. Arpaio is void. The President’s action is not authorized by the article 2, sec. § 2, limited grant of the pardon power, because Mr. Arpaio’s contempt is not an “Offense” within the meaning of that grant.

In addition, the purported pardon violates two basic constitutional principles. First, Article III courts have a duty to provide effective redress when a public official commits harm by violating the Constitution. As discussed below, Chief Justice Marshall described this duty in Marbury v. Madison, 5 U.S. 137 (1803), and his words have guided the federal courts ever since.

Second, Article III courts possess inherent power to enforce their orders, and this power exists outside and beyond legislative empowerment and executive whim. This power has as good or better a constitutional pedigree than any presidential claim. The Framers of the Constitution believed that this inherent power was, in Hamilton’s words “particularly essential in a limited Constitution.”

Similar arguments were made in proposed briefs by The Protect Democracy Project (pdf.), MacArthur Justice Center of Northwestern Law School (pdf.), and Martin Redish, Free Speech for People, and Coalition to Preserve, Protect and Defend (pdf.).

The problem with these arguments is that there is a Supreme Court case pretty much on point as to a pardon being effective as to contempt of court, as the Chemerensky brief acknowledges:

Ex parte Grossman, 267 U.S. 87 (1925) (Taft, C.J.) (unanimous), is a leading
case on the pardon power, and was heavily relied on by the majority in Schick, 419 U.S. at 266. The Court held that a pardon issued by the President with respect to Grossman’s
contempt was valid.

A cursory review might suggest that Grossman supports the purported pardon at
issue in this case. That would be mistaken, for reasons that appear within the Court’s
opinion, and are bolstered by the constitutional context within which this case arises.

The attempt to distinguish that authority is weak. The Constitution spells out the sole exception to presidential pardon power — cases of impeachment. If the framers had wanted to include contempt of court as an exception, they could have done so.

The arguments in the other briefs are as much policy arguments as legal arguments. For example, the Protect Democracy Project argues:

… the pardon power in Article II must be read in harmony with the later-enacted Due Process Clause. When the law of the land grants a court jurisdiction and the authority to resolve private litigants’ claims, the Due Process Clause protects those litigants’ ability to obtain appropriate relief in that court. Due process is violated if the President can eviscerate a court’s ability to ensure compliance with the law by those who wrong the rights of private parties.

Using that policy argument, there is no reason a pardon should be viable against any property crimes, something obviously not carved out of the presidential pardon power.

Similarly, the Protect Democracy Project argues:

… the Arpaio Pardon violates the separation of powers because it unconstitutionally interferes with the inherent powers of the Judicial Branch….”

But interfering in the judicial branch’s ability to convict and punish someone is the very reason for the pardon power. So by this theory, almost all pardons would be invalid.

An article in the Arizona Republic points to the problem with these arguments:

However, what the attorneys are asking Bolton to do is most likely unprecedented. None of the attorneys interviewed could name an instance in which a presidential pardon has been voided.

While I can never say never, it seems highly unlikely that the court would declare that a pardon which on its face is constitutional is not because it involves contempt of court.

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