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August 28, 2017

Lots of commentary and criticism in wake of Prez Trump's Arpaio pardon

There has been no shortage of commentary and criticism of Prez Trump's decision on Friday to make his first use of the clemency power a pardon for Joe Arpaio (basics here). Here is a not-quite-random, not-so-systematic sampling of stories and commentaries:

In accord with a lot of the commentary here, I am troubled by how Prez Trump first decided to use his historic clemency powers.  But, as this Guardian piece usefully highlights, many recent presidents have used their clemency authority in ways seemingly motivated unduly by political commitments rather than purely by concerns about justice and mercy.  I want to believe that the current President is capable and eager to have concerns about justice and mercy impact at least some of his future clemency decisions, but his track record on this front and others certainly does not inspire optimism.

August 28, 2017 at 11:50 AM | Permalink


:( Doug B. is having trouble being optimistic about Trump.

Posted by: Joe | Aug 28, 2017 11:58:03 AM

While one could argue about the ethical considerations leading to the reasons behind Arpaio's indictment, the fact was that the charges were specifically structured as to invoke exceptions to the 6th Amendment guaranteeing the right of trial by jury of peers, guaranteeing conviction by a left-leaning judge. Those exceptions to the 6th Amendment are determined that sentences are misdemeanors, not felonies, and that such sentencing would not be greater than six months. The order cites case law regarding the "not longer that six months" rule emanate from the following cites:

Muniz v. Hoffman, 422 U.S. 454
United States v. Rylander, 714 F.2d 996

Other cites that also indicate a sentence maximum can be used to determine ability to to deny jury trial:

Taylor v. Hayes, 418 U.S. 488
United States v. Aldridge, 995 F.2d 233
United States v. Berry, 232 F.3d 897.

To that end, the entire indictment/conviction process appears to have been politically engineered by the Loretta Lynch-led DOJ (if not AG Lynch herself) to inflict maximum political damage. The fact that Arpaio tried to get a jury trial and was vehemently denied underscores the shakiness of the original charge with along with the political makeup of the constituency.

Posted by: Eric Knight | Aug 28, 2017 12:09:22 PM

After multiple warnings, a Bush43 appointed judge (U.S. District Judge G. Murray Snow) warned Joe Arpaio that criminal contempt charges would be very possible for his actions respecting failing to follow a court order on racial profiling.

Snow found the defense provided unconvincing. Arpaio admitted that he violated several court orders, and consented to a finding of civil contempt against him. Eventually, the judge asked the Justice Department to file criminal contempt charges. A judge appointed by George Bush Jr. after service on the Arizona Court of Appeals. Charges were filed and a Clinton appointee decided he was guilty.

Seems to me, the charges were specifically formulated because the whole point here was to address contempt of court originating from wishes of a Bush appointment. This isn't about "Loretta Lynch." The fact the ultimate punishment was so minor that a jury might not be provided is duly noted. But, that doesn't seem to me the reason for it. If I was charged with merely a misdemeanor, not a felony, the fact I couldn't get a jury would not necessarily be a problem. I would be more worried about the possibility of a much more serious punishment. And, for criminal contempt, is a felony charge even typical?

Finally, Arpaio was not even sentenced yet. From my understanding, that was due in October. He was in his 80s. I don't think he was going to get six months in jail, particularly since he no longer is in office.

(I don't know how he was "vehemently denied" from getting a jury trial. The minor punishment in question NORMALLY doesn't warrant one. I see from one article that his lawyers argue his case is an exception. That's possible. But, the judge deciding it does not apply here seems quite reasonable. Did she say "NO!" in caps or something?)

Posted by: Joe | Aug 28, 2017 12:46:38 PM

ETA: He still is in his 80s.

Posted by: Joe | Aug 28, 2017 12:48:09 PM

All the links are to partisan political hit pieces. It is only in the Comment section of this blog that one can find reasoned legal analysis.

I second, and commend Eric for his level headed and lawyerly comment. I also objected to the deprivation of a jury trial, the trier of fact conflict of interest, being the judge contempted, and the prosecution by a Mexican prosecutor.

Posted by: David Behar | Aug 28, 2017 12:48:12 PM

I eagerly await Trump's push for legislation to allow jury trials for everyone accused of a crime that carries potential jail time. As a public defender in Atlanta, I saw thousands of clients put away for months at a time based on little to no evidence.

Now, if that sort of action doesn't follow, it's going to look like this argument against Arpaio's conviction by a Republican judge is just motivated reasoning. It would look as though the proponents of that argument would propose a "vast left-wing conspiracy" regardless of whether the charges carried harsh criminal penalties, or the relatively minor ones at issue.

Posted by: Andrew Fleischman | Aug 28, 2017 2:03:01 PM

The bottom line is that people like Adam Liptak (who, by the by, smeared the guy who supposedly assaulted Dick Cheney) et al. really have zero business whining here about the rule of law. The Marc Rich pardon was not just bad on Bill Clinton, but also on Eric Holder. I don't recall Liptak (supposedly a news journalist) mentioning any of that in his coverage of the tenure of Eric Holder.

Mr. Fleischmann, you raise a good point. The difference, of course, is that the federal judiciary, ever jealous of its powers, probably couldn't be counted on to render an impartial verdict, or at least it's fair of Trump to take that position and cure a "structural" issue (I get it, people may not agree with that justification/rationalization, but it's on the table).

Eric's point has some force to it. While DoJ may have been within the letter of the law, Arpaio's jury request, as a prudential matter, should have been heeded.

Posted by: federalist | Aug 28, 2017 4:05:56 PM

At 85, Arpaio could have busted the prison health budget.

I need a hip, a knee.

I take Harvoni, for $40,000 for 3 months.

I need rehab.

I need adult size diapers five times a day.

I am transgender, and need to transition.

Posted by: David Behar | Aug 28, 2017 5:34:10 PM

Of course President Trump has the authority to pardon anyone - it is unfettered. The unfortunate aspect is that the reason for the conviction, the reason for the pardon and the reason for all the contentious discussion seems to be all rolled up in polemic political action and rhetoric. Do we just want to verbally beat each other to death?

My full shout out to President Trump is to now grant clemency to a category of offenders whose sentences do not fit the crime. That category is nonviolent marijuana offenders who are serving sentences of life without parole or defacto life without parole for marijuana. Please take the process into White House not the DOJ - use the same procedure that was used for the pardon for Joe Arpaio.

Posted by: beth | Aug 28, 2017 7:47:46 PM

Beth. Before calling someone a non-violent marijuana dealer, try dealing in his territory. Report back.

Posted by: David Behar | Aug 28, 2017 8:23:04 PM

so the moron-in-chief, liar-in-chief, groper-in-chief pardoned his fellow nazi-in-chief and birther-in-chief. What's the big deal?

Posted by: anon12 | Aug 28, 2017 10:31:50 PM

David I've done all the homework.

Posted by: Beth | Aug 28, 2017 11:10:37 PM

Beth. You have a found a marijuana dealer who sees me selling in his vicinity, and says, cool, as opposed to setting his war dogs on me, before shooting me in the head?

Posted by: David Behar | Aug 28, 2017 11:45:41 PM

federalist's concern for the rights of defendants is appreciated though I disagree with certain aspects of the comment.

Posted by: Joe | Aug 28, 2017 11:57:09 PM

Anon12. Calm down. You made 17% on November 9 on all your assets. The real American people sent Trump to the White House to stop the failed elite you defend. Real Americans are not freaks and parasites.

I predict, Trump, will be weak, but will get re-elected. Watch out for the next guy. He is the one who will arrest them, try them, and execute the traitors destroying our nation. I hope he also stops all federal funds to the treason indoctrination camps we call universities, and defunds all failed cities, such as Detroit. I will probably be gone before that happens. That is so self evident a necessity, even the lawyer will come to understand the reasons.

I groped a chick stranger behind me, waiting on line. I did what Trump did. She leaned into me. When I stopped, I got nudged. That was when I was cute, however.

Posted by: David Behar | Aug 28, 2017 11:57:48 PM

Joe. Tell me if I am wrong. You are always pro-criminal, albeit in a weaselly way, to evade criticism. If the convicted felon is a conservative, you become, Mr. Hang 'Em High.

I respect your privacy. However, you should disclose your financial interest in the subject of sentencing.

I am arguing against my economic self interest. Crime has been good for me financially. That means, I am the most morally superior person here.

Posted by: David Behar | Aug 29, 2017 12:09:37 AM


IMLO , either a jury or "non-victim" judge should have heard the case

Posted by: Docile/Kind Soul® in OR | Aug 29, 2017 4:48:46 AM

"I am troubled by how Prez Trump first decided to use his historic clemency powers."

What the...?

You have no problem with the partisan nature of the prosecution, around the time of an election for Sheriff.

No problem with his deprivation of a jury trial.

No problem by a trial by the offended judge.

No problem with the name of the prosecutor, a Democratic Party attack dog, named Victor Salgado, appointed by Lorreta Lynch.

No problem with the use of political speech by Arpaio against him in a trial.

No problem when your boy, Obama released murderous drug dealers, a transgender freak who shared military secrets with our adversaries, and bomb making terrorists.

No problem when Clinton released Marc Rich, right after his wife donated $450,000 the Clinton Library fund, basically a personal slush fund for the Clinton family.

For a troubled person, you are awfully selective in your being troubled.

Posted by: David Behar | Aug 29, 2017 7:17:30 AM

The "victim" did not hear the case -- one judge referred the matter for criminal prosecution for not following his court order; another judge tried the case.

Posted by: Joe | Aug 29, 2017 9:58:12 AM

David, have you looked at the prosecution and sentencing of, say, Sholom Rubashkin or Don Seigelman or thousands of other high- and low-profile federal defendants who can and do often complain about the "partisan nature of the prosecution" and the "deprivation of a [fair] jury trial" and lots more who got years and decades in prison? Part of what troubles me is that Trump decided to make his first (and so far only) use of the clemency power a high-profile person and supporter. It would have been praiseworthy, and arguably an even more clever bit of political gamesmanship, if Prez Trump found a handful of lower-level folks worthy of some clemency relief to announce at the same time. (E.g., since Trump on the campaign trail signaled support for state medical marijuana reforms, he could have commuted the sentence of one or more persons currently serving time for state-complaint medical marijuana activities.)

Arpaio still had an appeal and had not yet been sentenced, and it is that particular aspect of timing that in part troubled me (along with the symbolism of who Trump picked as his first (and so far only) clemency recipient). For similar reasons, I remain deeply troubled by the Marc Rich pardon (which is far worse, in my view, and which I think HRC should have been asked about more in the 2016 campaign). A handful of Obama's commutations also trouble me, but in general I think commutations are categorically less troublesome than pardons (which is also why I testified to Congress that GWB's Scooter Libby commutation did not bother me so much, save for the fact that GWB did not commute many other sentences that seemed unnecessary).

Posted by: Doug B | Aug 29, 2017 10:43:03 AM

Hey David Behar, I found a bunch of marijuana dealers who aren't violent. They're in Colorado.

Posted by: Andrew Fleischman | Aug 29, 2017 11:19:39 AM

And in Washington and Alaska and Oregon and California and Michigan and New York and Florida and Illinois and in a bunch of other states and they are coming soon to Ohio and Pennsylvania and West Virginia, too....

Posted by: Doug B | Aug 29, 2017 11:47:11 AM

Is EVERYONE a marijuana dealer?

Posted by: Joe | Aug 29, 2017 12:15:17 PM

In a few weeks, Joe, the Bureau of Labor Stats will start releasing data on jobs in the marijuana sector, so we will know before long at least on government accounting of some number of marijuana dealers in the US circa 2017.

Posted by: Doug B. | Aug 29, 2017 2:45:36 PM


Doug, something that may interest you. Feel free to delete this comment.

Posted by: federalist | Aug 29, 2017 3:01:54 PM

Doug, you state that the timing is "troubling"--but why? It seems pretty clear that the idea that the process was rigged against Arpaio. Whether that's on the right side of the line or the wrong side, it's certainly defensible to put a stop to it before it works its way out. So why is the timing upsetting? Trump wasn't responsible for the decisions regarding the jury trial etc.--why can't he say, I am going to put a stop to it? Personally, I wouldn't have allowed DoJ to pursue that sort of chicanery.

Posted by: federalist | Aug 29, 2017 3:09:06 PM

[In & Out reference]

Posted by: Joe | Aug 29, 2017 4:52:01 PM

Andrew. Those marijuana dealers are not in prison. In PA, they need $2 million to apply to open a dispensary, and $5 million to grow the stuff. That is the state application fee. I do not have standing, or I would be demanding how PA is spending these fees. I would be filing Right To Know demands, if my son-in-law were not involved with one of the applicants.

They will not be setting their war dogs on you if you accidentally step onto their property.

Posted by: David Behar | Aug 29, 2017 11:39:12 PM

"Arpaio still had an appeal and had not yet been sentenced, and it is that particular aspect of timing that in part troubled me (along with the symbolism of who Trump picked as his first (and so far only) clemency recipient)."

Prof. Berman. If I may translate. Yes, we are reading minds here.

Trump's pardon short circuited procedure. He deprived trial lawyers and future appellate lawyers on both sides of the controversy of endless hours and disputes spent on a trivial matter. If anyone wants to lend me their laptop for an hour, I will come up with three federal charges, on the copyright infringement alone, with $millions in fines, and decades in prison. Never mind the embedded child porn. Anyone can do that to anyone else they do not like. I am surprised they did not use total e-discovery as a tool against Arpaio.

Beyond the fruitful results of harassing a political enemy, are the ethical considerations. Should unethical charging go uninterrupted until all procedure has been exhausted?

Rule 3.8(e)(1) was violated when Arpaio's lawyer was forced to testify about private conversations. State Rules of Conduct apply to federal prosecutors.

From the Code of Conduct of Federal Judges: "Judges may not hear cases in which they have either personal knowledge of the disputed facts, a personal bias concerning a party to the case, earlier involvement in the case as a lawyer, or a financial interest in any party or subject matter of the case."

Although the guidelines for being a good young prosecutor are advisory, and may not be used in a tribunal, the prosecution violated the spirit of this advice.

9-27.260 - Initiating and Declining Charges—Impermissible Considerations

In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government should not be improperly influenced by:
The person's race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs;
The attorney's own personal feelings concerning the person, the person's associates, or the victim; or
The possible affect of the decision on the attorney's own professional or personal circumstances.

Posted by: David Behar | Aug 30, 2017 12:01:22 AM


Doug, curious your take here.

Posted by: federalist | Aug 30, 2017 8:21:45 AM

Hey federalist, I have no doubt that Apraio's prosecution includes some elements that might look politically ugly --- I have not studied the case closely, and I wonder if Trump or Sessions have and whether Sessions or anyone else at DOJ gave Trump advice on this pardon. But almost every high-profile federal case involving a political actor or politically loaded issues I have looked closely at usually has some ugly elements. I mentioned Sholom Rubashkin and Don Seigelman because they are just two examples that come immediately to mind involving the kinds of concerns raised in the Arpaio case. I could add Jeff Skilling and the late Ted Stevens and many, many others as additional examples of defendants who, not unreasonably, believe their legal fates were the product of political concerns much more than a commitment to justice.

Part of what troubles me is uncertainty about whether the pardon represents a genuine concern for the fairness of federal judicial procedure or a driving desire to bless Arpaio's seemingly illegal/unconstitutional actions (and make those on the left crazed). The timing of the pardon, coming before a sentencing and an appeal that might air all these issues more fully, contributes to my concerns here. But I respect the notion that Trump could have been eager to end what he saw as a corrupt process. But again that has me wondering about whether DOJ shared the view that this prosecution was hinky.

In the end, if Trump uses his clemency power a lot more --- perhaps starting with Sholom Rubashkin who is serving a 27-year sentence as a result of procedures far more suspect than those that got Arpaio convicted --- I will be far less troubled by his decision to start with Arpaio. And more generally, I am inclined to favor even questionable uses of the clemency power more than no use at all.

Posted by: Doug B | Aug 30, 2017 11:25:05 AM

Hey federalist, I have no doubt that Apraio's prosecution includes some elements that might look politically ugly . . . .

Better watch out in the faculty lounge LOL

I see that you are saying that Trump's motives matter--fair point, but recall, Doug, that you really didn't delve all that much into Obama's motives (and misleading statements about the nature of the offenders to whom Obama granted clemency).

To be honest, I am a strong lean towards Trump being right on this pardon--the judiciary getting its comeuppance here serves a greater societal purpose.

As for Rubashkin--perhaps you could refresh everyone's memory about what was crappy about the conviction.

Posted by: federalist | Aug 30, 2017 12:58:28 PM

I would actually like to see a more systematic approach to presidential pardons that don't pander to the cause célèbres of the day, but rather to the injustice caused by illegal or highly improper judicial activism. I daresay there are hundreds of anti-constitutional decisions made on a daily basis around the country in which (primarily) prosecutors and judges collude, either directly or through rote, to subvert actual sentencing or judicial procedure for defendants. My ideal recommendation would be to create a commission to actively review these cases on a periodic basis, monthly or bi-monthly, and submit a list of vetted cases for immediate pardon.

This effect would do two things: One, obviously correct blatantly mishandled cases or decisions to provide justice for the defendant (and, in extension, other actors involved with his case). But just as importantly, the second reason would be to provide notice to all judges, prosecutors, defense attorneys, and whatnot: To FOLLOW THE DAMNED LAW AS THE CONSTITUTION DICTATES QUITE CLEARLY! I had to "vehemently" all-cap the obvious to make sure it stays obvious.

Posted by: Eric Knight | Aug 30, 2017 1:56:34 PM

federalist, what do you think Obama's motives for the clemency initiative other than to address his stated concerns about over-incarceration as expressed in his 2015 NAACP speech and his subsequent Harvard Law Review article?

Also, what is your notion of the "greater societal purpose" of the "judiciary getting its comeuppance here"? I suspect that most judges will look poorly on Trump's decision and I am unsure how their reactions will serve a "greater societal purpose." But perhaps you envision all sorts of great future echoes, and thus I want to hear what you have in mind.

Posted by: Doug B. | Aug 30, 2017 4:39:14 PM

The Judiciary has gotten way too big for its britches, and this contempt finding is evidence of that. Trump stuck it to them. Good for him. They need to start learning that imperiousness has consequences.

Obama comes from the worldview that the justice system is "just us"--he was less than truthful about the people to whom he granted clemency--and his clemency for an FALN terrorist was beyond repulsive.

Posted by: federalist | Aug 31, 2017 12:31:55 PM

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