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August 25, 2017

As he had hinted, Prez Trump decides to make his first use of the clemency power a pardon for Joe Arpaio

As reported here by Politico, "President Donald Trump pardoned attorney former Sheriff Joe Arpaio on Friday."  Here is more:

Arpaio had been convicted of federal contempt. The outspoken immigration opponent has long backed Trump. The president teased a pardon during a campaign rally in Phoenix on Tuesday. The White House cited a lifetime of public service in announcing Apraio's pardon.

I cannot yet find any official White House statement about this action, but I will update this post if and when one appears.

A few prior related posts:

UPDATE: This Reuters piece provides more context on the pardon as well as reaction thereto. Commentor Joe helpfully noticed that the official White House statement appears on the ABC News Twitter feed, and as of early Saturday morning I cannot yet find that statement on the White House website.

August 25, 2017 at 08:20 PM | Permalink


Good move. Now his DOJ should investigate the Hispanic prosecutor. First, is he even here legally?

Then investigate the awful feminist judge.

Arrest them. Try them. And put them in prison. To deter.

Posted by: David Behar | Aug 25, 2017 9:11:17 PM

Here is an official press release:


Posted by: Joe | Aug 25, 2017 9:34:12 PM

Joe. Isn't ABC owned by the gay controlled Walt Disney Corporation, pushing the gay agenda of destroying the American family? Didn't its gay activist President resign from Trump's Advisory Council, because he is biased against the real Americans who put Trump in office? Doesn't his show, Ellen, make gay OK with adults? Doesn't his flagrantly homosexual character in Beauty and the Beast make gay OK with kids? Isn't this organization a rich corporation promoting the gay agenda, seeking the destruction of the American family?

Joe, what is your sexual orientation if I may ask?

Posted by: David Behar | Aug 25, 2017 9:54:04 PM

Joe. This clinches it. You are on the side of the ABA. You should be ashamed of yourself to share an opinion with the ABA.


Posted by: David Behar | Aug 25, 2017 10:07:23 PM

David, I find your reaction to Joe's provision of a helpful link disturbingly off-topic and unhinged. I am inclined to delete these comments, but I wanted you to know of my concerns and urge you to understand why continued comments like these may prompt me to preclude you from this forum in the future.

Posted by: Doug B | Aug 26, 2017 7:33:35 AM

Thw quoting of an ABC story is morally equivalent to the quoting of Storm Front, except the latter is honest about it bias. Joe is arguing in bad faith, with an undisclosed and morally reprehensible agenda.

You do not care about left wing, pro-criminal bias. Your ad hominem attacks on me and on no one on the left shows you share them. Vicious personal attacks by the left are not a problem for you. You have some thinking to do, about your own false piety.

You also just refuse to acknowledge the David Duke effect. It is 99.99% ubiquitous in the media. It is false propaganda by selection, and by lack of balance. Balance is an ethical requirement of journalism, as it is in the law. Professorial ethos, announced in your academic title on this blog, also requires the presentation of balance. There have been 1 or 2 pro-vitim posts here and tens of thousands of pro-criminal posts.

So, ABC is a homosexual agenda promoting, anti-family, hate false news site. Joe may as well just quote David Duke or Storm Front. You would not criticize that if it promoted the pro-criminal side. At least David Duke is honest about his hate. ABC and all you left wing people are supercilious and morally superior, when all you are is unethical.

You get agitated by any attempt to bring any kind of pro-victim balance. You cannot even debate my high school level points. Shunning is pure cult methodology. Here is what is worse. You likely did better in high school than I did. Your high school education was erased by the criminal cult indoctrination you underwent in law school. You now know less about common sense than kids in Life Skills class. Put them on the Supreme Court for an immediate upgrade in logic of decisions, and in the clarity of the writing.

Posted by: David Behar | Aug 26, 2017 10:09:10 AM

Prof. Berman. What are you implying by the threat to ban me?

Are you implying that asking about being a homosexual is insulting? I find that discriminatory. If I worked at your school, I would have to report your biased implication. I would request an investigation, and if biased were found, sensitivity training.

I do not find being a homosexual to be a negative. They are smart, successful people. The average homosexual in the 2010 Census had an income a full standard deviation above the mean for heterosexuals. If Joe is gay, he should be proud, and is likely bringing in a big salary.

ABC is an all out homosexual agenda promoting, totally biased, hate speech organization, and the question about sexual orientation is relevant to the comment.

Posted by: David Behar | Aug 26, 2017 10:17:06 AM

Doug, please do us all a favor: ban Mr. Behar.

Posted by: Taylor | Aug 26, 2017 10:49:17 AM

A reporter I follow on Twitter was careful not to comment on a reported decision on trans in the military until he found an official statement on the matter.

The Trump Administration repeatedly reports things, officially or unofficially, without first providing such an official response. The reporter also argued the Justice Department, where pardons was usually go through, has an obligation to formally state how the pardon was handed down, including its involvement.

With announcements on Twitter etc., the Trump Administration is somewhat more casual about certain things.

Posted by: Joe | Aug 26, 2017 10:49:45 AM

Joe Arpaio is lucky that while he was sheriff of Maricopa County Prison that neither he nor any of his associates were taken hostage by inmates angry over his abusive policies toward them like letting them die of poor medical health or of thirst and starvation in his "tent" city. His policies put not only inmates, but his staff members, at extra risk of being killed or assaulted by inmates fed up with being mistreated like animals. His fellow correction officers should have gone on strike against him the way some correctional officers in North Carolina went on strike several years ago to protest harsh prison policies that put their lives and safety at risk. Indeed, some inmates and their loved ones did make some attempts to hire somebody to kill him. Fortunately, those attempts failed even though I can certainly understand their hatred against Arpaio.

Arpaio has made so many enemies by his racist and sexist policies. While I wish no harm against him, I could understand why several people might want to even the score with him. He has harmed a lot of innocent law-abiding people by automatically presuming their guilt and with his xenophobic profiling policies. That's the jury's job, not the sheriff's job, to determine guilt. I don't want to be in Arpaio's shoes right now. With so many people angry over his pardon and a desire to settle scores with him, I would advise Arpaio to watch his back and to stay out of certain neighborhoods.

In closing, the hallmark of good policing requires an officer to earn the trust and respect of law-abiding minorities to help track down criminal elements. You don't earn this respect or trust by lumping all members of a minority as criminal by the criminal acts from a small handful of these minority people.

Posted by: william r. delzell | Aug 26, 2017 12:46:26 PM

Taylor: That is a vicious personal attack. If you are a licensed lawyer, you are unprofessional.

Posted by: David Behar | Aug 26, 2017 2:48:29 PM

Taylor: Which of the 540 ways to love do you subscribe to?

Posted by: David Behar | Aug 26, 2017 2:56:01 PM

David, this has nothing to do with left or right, though I know you are eager of late to see everything in these terms. What has long been frustrating to me and to others is your tendency, David, to over-react to small items and/or to the background of an author or commentor. Those annoying tendency are on full display when, in reaction to a helpful link to a White House statement not otherwise available, you make so much of the location of the link and of what it might imply about the person who provided the link. It is silly, distracting, and is the kind of comment that makes me sorry I suggested you could return to commenting here. If it keeps happening, I will again ask you to leave.

Posted by: Doug B. | Aug 26, 2017 5:30:41 PM

Joe Arpaio is probably the best Sheriff you will be able to find. He followed the Law and did it humanly- even the inmates respected him.
Out of the many Sheriff's that our County has had, none of them was competent enough to follow the Law and they took orders from the DA and the Judge. One Sheriff even refused to take a theft report because he said that the DA would not Prosecute (he was running for Judge).

Posted by: LC in Texas | Aug 26, 2017 7:44:12 PM

If I quote David Duke about the Jews, is that a trivial or distracting focus on the source? My point is that except for C-SPAN, all media are now David Duke, with very sick, extreme agendas. All media are mired in the confirmation bias. All are unethical journalists. All are worthless to someone who wants information, and not pre-selected propaganda. If you cannot see that, then you are also a denier, as well as a practitioner of the confirmation bias.


C-SPAN is still owned by a half a dozen, huge media companies and remains suspect. However, Lamb indicated his counting stories to remain balanced. He is trying, and should receive ethical journalism credit. No other outlet should.

I like the lawyer remedy to bad faith, the disclosure. No one may criticize a biased source that makes a full disclosure, preferably with a list of funding sources. It ends the discussion of bad faith.

Let's get personal, since you are doing that. You have a title on this blog, of Professor. I suggest removing it. I suggest replacing it with, "I am a Harvard trained lawyer. I will be providing information that supports the interests of the criminal. These are supported because they generate jobs for lawyers." End of argument. I visit here if I am a rent seeking lawyer. I visit David Duke if I hate the Jews.

Hold up before calling me the David Duke of the lawyer profession. David Duke hates the Jews. I criticize the lawyer profession because I love it, and I think it can do a whole lot better. I am its ultimate, long term beneficial, rent seeker. You lawyers will be making 4 times more, and have 10 times the public esteem if you begin listening to the calls of the modern and of the empirical. Stop listening to the cult, with its 13th Century super-natural beliefs. In your criminal law class, are you clearly labeling mens rea and intent as mental states known only to God upon reaching heaven, and their reading as a supernatural power attributed to God by the Medieval Church, and never to man as the lawyer cult believes?

I also object to your belief that asking if someone is gay is any attempt to insult or denigrate the person. It is not an insult to be gay in my book. And, do not start calling me a racist for using the word, denigrate.

Posted by: David Behar | Aug 27, 2017 1:04:10 AM

Doug, please pull the plug on Supremacy Clause. Bruce

PS, I wager SC won't be able to resist some ad hominem directed toward me.

Posted by: bruce cunningham | Aug 27, 2017 9:03:00 AM

David, the ways in which your bias distorts your ability to have a cogent conversation is the problem. I get that you think ABC and other mainstream media are, in your words, "sick" and "unethical." Fine. But that presents no reason to question the motivations of a commentor who links to a media source that provides information seemingly not otherwise available elsewhere. It would be like me questioning you about whether you use an Apple or Google product to type up your comments, and what internet provider you use. (Please answer those questions, David, and also let me know if you have investigated how many lawyers are employed by these companies and how that contributes to the cost of the products they produce.)

The problem, David, is not just that you are so eager to "shoot the messenger," but you go so far as to be questioning the messenger about who may have built the road he traveled upon. (And I do not think asking if someone is gay is an insult, but it is an unhinged and distracting response to a decision to provide a link to a twitter feed of ABC.)

You are welcome, David, to put in the comments after every post that I am a Harvard trained lawyer who helps produce new lawyers and is interested in job opportunities for lawyers. Of course, that information is also available via the links at the very top left side of the blog (and, arguably, is far more relevant to my marijuana blog). I will not be bothered if you want to emphasize this point after each post. But I am bothered when you distort conversations with rants and silly questions after a commentor provides a helpful link.

Posted by: Doug B | Aug 27, 2017 11:47:43 AM

Washington, DC (Aug. 26, 2017) – Rick Jones, President of the National Association of Criminal Defense Lawyers (NACDL), issued the following statement concerning last night’s pardon by the U.S. President of former Maricopa County, AZ, Sheriff Joe Arpaio:

“Reinforcing a tremendous sense of fear and foreboding among large cross-sections of some of the most vulnerable groups living in the United States, President Trump last night pardoned former Sheriff Arpaio, who stands convicted of blatantly disregarding a federal court order preventing the illegal detention of individuals without charge based simply on the suspicion they are undocumented.

“NACDL is very troubled by this use of the executive power to grant mercy, for the very first time by President Trump, before the judicial process is completed, and where there has been no evidence of contrition or acknowledgement of wrongdoing. This pardon reinforces an extremely disturbing pattern of conduct by this President who, through his words and his deeds, has shown disdain for the co-equal Judicial Branch of government as well as the actual and potential victims of constitutional abuse. We are fast spiraling into a moment of constitutional crisis, and those of us who are required to stand behind the Constitution must not remain silent when the power of government is used to perpetuate injustice.”

Posted by: Taylor | Aug 27, 2017 1:32:25 PM

Supremacy, Doug is the man on this site. One must respect that and pay heed to what he says. Hes smart, ever so fair and gives one lots of chances. Maybe step back and draw a few deep breathes. I like this site and enjoy reading what smarter and more articulate people than me have to say on this site. Im guessing you also do. Get with the program and save your access.

Posted by: MidWestGuy | Aug 27, 2017 10:10:17 PM

Hi, Bruce. I am sorry if I have not attacked you lately. I love you as a lawyer. I want you to unleash the greatness you have inside. I want you to achieve the necessity our society has for adequate defense lawyers.

I want you to fulfill your first duty, the one to your client of zealous representation, to free the wrongly accused.

I want you deter prosecutorial misconduct by obeying the Rules of Conduct of mandatory reporting and complaining about it. If you do not want to violate the rule against the threat of using the Rules of Conduct in litigation, go to the judge of the case. He has tremendous powers to do justice and to protect the rule of law. I want you to deter the source of your job, not the innocent client, but the prosecutor. I want you to disclose to all your clients, the client is a fungible stranger, but that you like and are friends with the asshole prosecutor. You owe the prosecutor your job, and not the client. Stop being the running dog for that fool, merely delivering the plea. Email can do that. I want you to disclose that after a case you meet the prosecutor and drink to the stupidity of the public, allowing that failed, cozy system you two have going.

I want you to drop the 20% rate of false positive of your profession. For every 5 executions, there has been one exoneration. I want you to report your prosecutor to the International Court at the Hague for a crime against humanity for any exoneration in your jurisdiction.

I want you to make a checklist of the 100+ biases here. Each is a violation of due process. I want you to start to make sure none affects your case.


I want you to catch up to cognitive science, and to insist on physical evidence every time an eyewitness utters a false memory implanted by the police. There is no true eyewitness testimony months after a crime.

I want you to insist, again, inside the trial, with the same judge, that all false accusers, especially of rape, go to prison with the minimum that Martha Stewart served for denying getting a phone call in a casual conversation with FBI agents in her living room, not under oath: 5 months in stir, 5 months house arrest, 2 years probation. I want you to insist that all allegations of sexual battery have been screened with a lie detector test. I want you to sue the prosecutor for bringing any rape charge that does not involve force.

In death penalty cases, I want you to claim that the set date is a cruel violation of the Eighth Amendment.

I want your association to go through the Rules of Evidence and to demand the legislature mercilessly remove all that Medieval bullshit. It is a disgrace.

I want you to support making judge inquisitors rather than the inaccessible Virgin Empress of China that they are mandated to be.

I want you to support the end of all appalling, self dealt immunities of judges and of prosecutors. Pass a federal Amendment telling those nitwits, the party is over. Make them pay for damage from their carelessness. This is where you become a billionaire as a defense attorney, the carelessness of the system, railroading innocent people. If wanting to make you a billionaire is not love, tell me what is. To deter.

Posted by: David Behar | Aug 28, 2017 5:30:38 AM

Mid. Let me translate. Do not disagree with the criminal cult enterprise. Obey.

Problem. The law is your and my chattel. These criminals have misappropriated it, taking our $trillion, and returning nothing of value. That is the definition of rent seeking. Collect taxes at the point of a gun, return nothing of value. Indeed, every year a lawyer lives he actively destroys a $million of economic value. Rent refers to returning nothing of value. We need a word for taking money and actually destroying additional value. Vandalism, perhaps.

Posted by: David Behar | Aug 28, 2017 5:39:05 AM

Taylor. Don't defense lawyers support the use of clemency? From their website, discussed at length in this blog:

"Clemency Project 2014 is composed of the Federal Defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and the National Association of Criminal Defense Lawyers, as well as individuals active within those organizations and other lawyers wishing to participate in this volunteer effort."

The real name of this association should be the National Association of Criminal Democratic Lawyers (NACDL).

I am keeping quiet about their hypocrisy to avoid bothering Prof. Berman.

Posted by: David Behar | Aug 28, 2017 5:47:03 AM

Prof. Berman: I will not need to criticize you if you spend one minute, first day of Criminal Law 101, saying the following.

"There are 15 million common law crimes and 15 million internet crimes, netting $5000 each, or $1000 more than a bank robbery, each year. There are 2 million prosecutions. If a mechanic repaired only 7% of the broken cars brought to him, he would be stopped by the authorities.

Of the 2 million prosecutions, up to 20% are false. So in the rare cases the mechanic did make a repair, it was the wrong repair. Welcome to the criminal law."

Posted by: David Behar | Aug 28, 2017 5:55:14 AM

I was not satisfied with the legal analysis on the validity (or lack thereof) of pardoning someone for contempt. Off the cuff, I could see why contempt was a judicial action and therefore a separation of power violation for the President to interfere. Conversely, I knew the pardon power was very broad. Anyway, I decided to research the issue myself and thought I would share it. By way of background, I am a Michigan criminal appellate attorney with twenty-five years experience. I am not a Trump supporter and definitely not an Arpaio supporter. I think the pardon is legal. Understand that this is under one hour's worth of legal research and is not meant to be the definitive answer. Unfortunately, most of the discussions I've seen seem to have done less research than I have done.

* * *

The question goes to the nature of contempt which is a murky beast. Doing twenty minutes of legal research on a question that requires twenty hours, I think the issue may favor our President.
Ex parte Grossman, 267 US 87; 45 S Ct 332; 69 L Ed 527 (1925) says that the President can pardon criminal but not civil contempt. Grossman was cited approvingly in conjunction with a broad statement concerning the pardoning power in Schick v Reed, 419 US 256, 266; 95 S Ct 379, 385; 42 L Ed 2d 430 (1974).

A year before Grossman, the New Mexico Supreme Court reached a similar ruling in State v Magee Pub Co, 29 NM 455; 224 P 1028 (1924). An early Tennessee case also seems to favor the President's Power. Sharp v State, 102 Tenn 9; 49 SW 752, 753 (1899) which seems to do a nice analysis. Also favoring the President is State ex rel Van Orden v Sauvinet, 24 La Ann 119, 121 (1872) and In re Opinion of the Justices, 301 Mass 615, 621; 17 NE2d 906, 911 (1938); In re Mullee, 17 F Cas 968 (CCSDNY 1869).

In England, the Court held the Crown could pardon criminal contempt in the Dowerger Dutchess of Sutherland case reprinted in Oswald Contempt available here:


New Jersey has said it in dicta in In re Caruba, 142 NJ Eq 358; 61 A2d 290 (1948) holding that the Governor (as opposed to a chancellor) could pardon criminal contempt. Michigan has said that a trial judge can't purge his/her own criminal contempt -- only the Governor can foregive criminal contempt. People v Giacalone, 17 Mich App 508, 512; 170 NW2d 179, 181 (1969).

Going the other way is State v Shumaker, 200 Ind 716; 164 NE 408, 410 (1928) which says contempt is a core power of the judiciary designed to ensure compliance with the judiciary and that the executive branch cannot negate it with their pardon powers. Accord. State ex rel McLeod v Hite, 272 SC 303, 304; 251 SE2d 746, 747 (1979); People ex rel Brundage v Peters, 305 Ill 223, 228; 137 NE 118, 120 (1922); In re Nevitt, 117 F 448, 449 (CA 8 1902); Taylor v Goodrich, 25 Tex Civ App 109, 114; 40 SW 515, 517 (1897). I think Wisconsin would ultimately go against the President but I see a little wiggle room in their cases. State v King, 82 Wis 2d 124; 262 NW2d 80 (1978) overruling State v Verage, 177 Wis 295; 187 NW 830, 832 (1922).

It is also worth reading the lower court opinion in Grossman. While clearly reversed by the US Supreme Court, the lower court judge did a very nice job explaining why the contrary rule is the better approach. United States v Grossman, 1 F2d 941, 942 (ND Ill 1924).

If you really want to dig in the weeds, I found Annotations on this issue at 63 A.L.R. 226; 23 A.L.R. 524; 26 A.L.R. 21; and 38 A.L.R. 171.

Posted by: Stuart Gary Friedman | Aug 28, 2017 7:06:24 PM

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