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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

“the government agrees that the Court should vacate all orders and dismiss the case as moot”

https://www.facebook.com/sheriffjoearpaio/photos/a.405604816147012.93091.108536052520558/405604819480345/?type=1&theater

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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Comments

‘Reject the pardon as unconstitutional’.

Seriously. Do these idiots even have a basic understanding of how the Constitution WORKS?

And even f the pardon were declared unconstitutional we could round up literally HUNDREDS of people pardoned by their patron saint Obama.

    Stan25 in reply to Olinser. | September 11, 2017 at 10:30 pm

    The pardon is only constitutional when a DemocRAT President makes them Can’t have an evil Republican president doing this, especially Donald Trump. Have to make sure only the right people will get them i.e the ones who contribute millions to DemocRAT coffers.

    Milhouse in reply to Olinser. | September 11, 2017 at 11:26 pm

    Yes, they do have a basic understanding of how the Constitution WORKS. They’re wrong, of course, but far from ignorant or stupid. Did you not read the post, and see the basis for their contention? If their motion were granted and the Arpaio pardon were declared unconstitutional that would not void any of 0bama’s pardons. That you seem to think it would shows you haven’t bothered to read the post before replying to it, or that you’re incapable of understanding very basic legal concepts.

    CZ75Compact in reply to Olinser. | September 11, 2017 at 11:38 pm

    I think you need to fail junior high civics to get into the Democrat Party.

    Is a Rule 11 sanction merited here?

    “Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support.”

      No, their argument isn’t frivolous, which is defined as “completely lacking merit”. It’s weak and deserves to be dismissed, but I think there’s enough there to avoid sanctions.

      You do know that they no longer teach Junior High Civics, right?

        The civics curriculum was not in Junior High and it has yet to appear in High School.

        I’ve been taking care of the educating myself during the two years of campaigning, election, and subsequent fallout. I hope other parents do the same.

          Edward in reply to rgj. | September 13, 2017 at 9:11 am

          I’m not sure when and where you went to school where there was no civics taught at the Jr. or Sr. High School levels. Or are you speaking only to schools today? In my experience, during the 50s, civics most certainly was part of the JHS and SHS curricula.

      DallasMatt in reply to CZ75Compact. | September 12, 2017 at 6:05 pm

      Sure looks frivolous to me. Conservative group or state legislature ought to start state bar proceedings to revoke the law licenses of these jerks wasting precious court time and federal resources.

    notamemberofanyorganizedpolicital in reply to Olinser. | September 12, 2017 at 9:58 am

    No, they don’t understand it.

    They’ve been brainwashed by the Democrat MSM/Educational/Hollywood System to accept the Democrat Party Dictatorship.

Unconstitutional?

Advocates for selective-child, diversity (e.g. color or racism), political congruence (“=”), man-made social justice adventures, first-order forcing of CAIR, and mass and illegal emigration from second and third-world nations, didn’t even blink.

The core argument is that criminal contempt of court is not an “offense” against the United States
[…]
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.

More than this. The very exception proves that the pardon power is not limited to “Offenses against the United States” in the narrow sense they are using. Impeachment cases are not such offenses either. Impeachment need not be for an actual crime; an official may be impeached for a disastrous political or military miscalculation. So if the pardon power were limited to “Offenses against the United States” in the sense they’re using it then there’d be no need for this exception. The fact that they made it proves that such “offenses” are included in the term as it’s being used here, so that without the exception one would expect the pardon power to extend to them too.

    alaskabob in reply to Milhouse. | September 11, 2017 at 11:32 pm

    Surely there must be precedent …… I can not imagine this is a first time…..however there may not have been challenges in the past for such use.

    tom swift in reply to Milhouse. | September 12, 2017 at 3:02 am

    Impeachment need not be for an actual crime; an official may be impeached for a disastrous political or military miscalculation.

    The Constitution specifies otherwise.

    Article II, Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

    The word “crimes” figures prominently.

    The Democrats (although called Republicans at the time—not to be confused with the Republican Party formed in the 1850s) tried to use impeachment as a way to remove Federalist judges, thus leaving room for the first Republican President, Jefferson, to appoint good Republicans in their stead. This attempt—the impeachment of Associate Justice Chase—failed. All eight articles of impeachment were based on policy disputes, dressed up as “bias” on Chase’s part. The Federalists argued that Chase, not being accused by the House of any actual crimes, could not be impeached, and the Senate apparently agreed.

    I don’t recall that this experiment has ever been repeated. Judges, among others, have since been removed by impeachment, but there were always actual crimes involved.

      stevewhitemd in reply to tom swift. | September 12, 2017 at 8:26 am

      … or other high Crimes and Misdemeanors.

      Traditionally, those two terms have been defined rather liberally. A disasterous military campaign that led to the loss of an entire US army group, one that was formulated and insisted upon by a president, for example, could be seen as a ‘high crime’ by the Congress. And since the Congress is the party that impeaches and convicts, that’s what matters.

      The Framers understood Impeachment to be a political issue and the “high crimes and misdemeanors” have been determined by the Articles of Impeachment voted on by the House and guilt determined by trial and vote of the Senate.

      Impeachment and Conviction can be for an actual alleged criminal act, as in US District Judge Alcee Hastings 1989 Impeachment conviction for accepting a $150,000.00 bribe and other matters (the Democrat controlled Senate could have included a bar on seeking Federal office for life, but did not – and Hastings has been a FL Congresscritter since 1992, proving that Impeachment is not a problem for a Democrat).

    DaveGinOly in reply to Milhouse. | September 12, 2017 at 6:41 pm

    Milhouse – one of your best!

Paul Mirengoff at Powerline argues that Arpaio’s conviction had lots of holes, complete with a biased judge. If Trump could look under the surface of the headlines, he might be able to choose an option that did not include a pardon.

    Olinser in reply to gad-fly. | September 12, 2017 at 2:31 am

    Paul Mirengoff is a NeverTrump hack who may as well be a registered Democrat. Every single one of his articles is written to paint Trump is absolutely the worst possible light.

    Arpaio would have sat in jail for months waiting for an appeal, and given that it was going to the Ninth Circus, they would probably have delayed for as long as possible before upholding it.

      Ragspierre in reply to Olinser. | September 12, 2017 at 8:33 am

      You’re nuts.

      http://www.powerlineblog.com/archives/2017/09/trump-hits-another-home-run-on-judges.php

      All the authors at PowerLine are very much like Prof. Jacobson.

      And you didn’t bother to read up on Mirengoff’s piece (with which I strongly disagree). It was pro-Arpaio.

      I found Andy McCarthy’s analysis far better.

      In any event, the reversal of a POTUS pardon is a dead letter.

        Ragspierre in reply to Ragspierre. | September 12, 2017 at 10:47 am

        OK, down-thumbers…

        arguments or just admit you’re a bunch of haters.

        Olinser in reply to Ragspierre. | September 12, 2017 at 7:39 pm

        So as ‘evidence’ you cite a single story in which he praises a judge… and then closes with a pointless potshot at Trump, and at risk of ‘alienating’ Senators from voting for somebody he literally spent an entire story praising.

        So yeah, that article still 100% consistent with my statement that Mirengoff uses every opportunity to paint Trump in the worst possible light.

        If this judge fails to get confirmed it won’t be the fault of Senate Republicans failing to vote for an eminently qualified candidate, it will be Trump’s fault for ‘alienating’ them.

        Ragspierre in reply to Ragspierre. | September 12, 2017 at 9:07 pm

        http://www.powerlineblog.com/archives/2017/09/espn-anchor-rails-against-white-supremacist-trump.php

        That’s today, nutter.

        If you had the balls of a goldfish, you’d research his past posts.

        But you don’t. You’re just nuts.

        Now, given the chance to step back, you’re a proven liar.

        “Every single one of his articles is written to paint Trump is absolutely the worst possible light.”

        A PROVEN, demonstrated lie from a T-rump sucking liar.

        Ragspierre in reply to Ragspierre. | September 12, 2017 at 9:24 pm

        “Whatever criticisms conservatives have of Donald Trump’s presidency to date, he has not disappointed at all when it comes to judicial nominations. Justice Gorusch is the most obvious example, but we can cite others, including the two nominees for the United States Courts of Appeals, Joan Larsen (Sixth Circuit) and Amy Barrett (Seventh Circuit), whose hearings occurred this week.

        Today, the president hit another home run — indeed, I would say a grand slam — when he nominated Greg Katsas for the United States Court of Appeals for the District of Columbia.”

        Oh, yeah. “Paints in the worst possible light…”

        I wonder what you say about the LI authors behind their backs, liar.

Obama pardoned terrorists and traitors and the left was fine with it. Now they are contesting a fairly minor crime because they don’t like Arpaio. Tough luck. It’s a case they can’t win.

These types of cases appear and reappear because it doesn’t matter what the constitution says. It only matters what the courts say the constitution means. It’s time the courts stop running the country. This case should be tossed and the lawyers temporarily disbarred for incompetence and wasting the courts time. Otherwise Mr. Trump can do what Mr. Obama did, simply say it’s his choice to enforce, or not, the laws he wants to enforce. After all, as Mr. Obama explained, there are limited resources.

Their argument against the pardon is similar to the one Texas Democrats tried to use to prosecute Rick Perry when he used the veto authority given him under the Texas constitution to remove the Travis County Assistant DA who was DUI by eliminating her funding from the budget.

Nothing new or unusual for Democrats: laws only matter when we benefit. Now NeverTrumpers are joining them. Big surprise.

    Ragspierre in reply to SDN. | September 12, 2017 at 9:25 am

    “Now NeverTrumpers are joining them.”

    Name them.

      Ragspierre in reply to Ragspierre. | September 12, 2017 at 5:04 pm

      Nothing…???

      Not a list of names after all these hours…???

        Unlike Rags, I have an actual job that doesn’t permit me to hang around on Legal Insurrection and squawk “TRUMP BAD!!!!!eleventy!!”… but to throw the parrot a cracker:

        Ron Radosh
        The whole editorial staff of National Review.
        Juan McLame

        I’ll let him go back to his solitaire at Dewey Cheatem and Howe…

        Ragspierre in reply to Ragspierre. | September 12, 2017 at 9:12 pm

        Post links where anyone you named (or really DIDN’T name) supports the case to reverse the pardon, liar.

        Or you could be a mensch and admit you just lied…or really, really BADLY overstated reality.

        Either or…

    ecreegan in reply to SDN. | September 12, 2017 at 10:04 am

    The DA wasn’t just DUI, she attempted to use her office to threaten the arresting officer.

regulus arcturus | September 12, 2017 at 11:14 am

Judge Bolton, the presiding federal activist in this case, will never agree to dismissal, given her longstanding animus towards immigration enforcement efforts in general, and Arpaio in particular, which means an appeal will end up in the 9th Circus.

Anybody want to hazard a guess as to how that goes?

More to the point why is this small judgement worth all this to the left?

My theory is they want to show that they are above the law even Presidential pardons. Also that they are so filled with bloof lust about this they can’t let it go.

Both these things make me dread the idea that Democrats can ever get their hands on power ever again. They are out of control totalitarians.

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