Will Judge Overturn Arpaio Pardon?

by Marjorie Cohn, Truthout | News Analysis –

When Donald Trump plunged a dagger through the hearts of former Arizona sheriff Joe Arpaio’s victims and all justice-loving people by pardoning the racist serial lawbreaker, many threw up their hands in resignation. The president’s constitutional pardon power is absolute, they thought.

Not so, argue lawyers and legal scholars in two proposed amicus briefs filed in US District Court in Arizona. They contend the Arpaio pardon is unconstitutional.

Judge Susan Bolton convicted Arpaio of criminal contempt on July 31, 2017, for demonstrating “flagrant disregard” of a 2011 court order that he cease racial profiling. For 18 months following the 2011 order, Arpaio had continued his racist practice of detaining Latinos without reasonable suspicion in violation of the Fourth Amendment.

While Arpaio awaited sentencing for his criminal contempt conviction, Trump granted him a pardon on August 25, 2017.

After Trump announced the pardon, Arpaio moved to have his criminal conviction dismissed. Judge Bolton vacated the date that had been set for sentencing and scheduled an October 4 hearing to rule on Arpaio’s dismissal motion.

If the judge determines Trump’s pardon was invalid, she could sentence Arpaio for his contempt conviction, thereby provoking an appeal.

The Arpaio Pardon Violates Due Process

The Protect Democracy Project (PDP), a group of former Obama administration lawyers, contend in their proposed amicus brief that Trump’s pardon of Arpaio violates due process and separation of powers. Thus, Judge Bolton should declare the pardon null and void.

Arpaio was not simply convicted of committing a criminal offense. He was convicted of criminal contempt for refusing during an 18-month period to obey a court order to stop violating the Fourth Amendment. His contempt conviction stems from a civil class action lawsuit filed by Arpaio’s victims.

“No person shall … be deprived of life, liberty, or property without due process of law,” the Fifth Amendment’s Due Process Clause says. It “protects the rights of private litigants to bring their claims before an impartial and empowered court and prohibits extreme and arbitrary actions of government officials, including the Executive Branch,” the PDP amicus reads.

“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,” the PDP lawyers write in their brief. They quote the Supreme Court opinion in the 1998 case County of Sacramento v. Lewis, which says, “the Due Process Clause was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression.”

The Arpaio pardon, the PDP lawyers argue, violates the Due Process Clause “by limiting the protection of private rights, rendering the due process guaranteed by law an empty promise.”

The Arpaio Pardon Violates Separation of Powers

PDP maintains the pardon also “unconstitutionally interferes with the inherent powers of the Judicial Branch,” and thus violates the principle of separation of powers.

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Reprinted with permission from Truthout