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September 12, 2017

Wishing for comparable efforts to contest severity in light of legal attacks on leniency of Arpaio pardon

The title of this post is my reaction to this Politico article headlined "Legal groups move to challenge Trump's Arpaio pardon."  The article reports on just some of the copious efforts to contest Prez Donald Trump's first use of his clemency authority.  Here are the basics:

Two advocacy groups moved on Monday to challenge Donald Trump’s pardon of controversial former Arizona Sheriff Joe Arpaio, alleging that the president's move was unconstitutional because it undermined the power of the federal judiciary.

A public interest law firm, the Roderick and Solange MacArthur Justice Center, sought to file an amicus brief in an Arizona district court, where Arpaio is seeking to vacate a conviction after Trump granted him a pardon last month. The brief was initially turned down by a judge on procedural grounds.  A second group, the Protect Democracy Project, also filed an amicus brief on Monday arguing that the pardon is unconstitutional....

The [MacArthur Justice Center] brief contends that Trump’s pardon of Arpaio violated the Constitution because “it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”  The MacArthur Justice Center lawyers argue that, while broad, presidential pardon power can not be used to undermine the judiciary’s ability to enforce the Bill of Rights or the Fourteenth Amendment.  The Arpaio pardon, the lawyers argue, “eviscerates this Court’s enforcement power...by endorsing Arpaio’s refusal to comply with federal court orders.” The brief also takes issue with the breadth of Trump’s pardon, noting that the “text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again...and escape criminal liability for future contempt.”

Protect Democracy’s lawyers similarly contend that the pardon violates the separation of powers “because it unconstitutionally interferes with the inherent powers of the Judicial Branch.” They also argue that the pardon goes beyond the president’s power — “We are aware of no case in this Court, the Ninth Circuit or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants,” the lawyers write — and violates due process.

This extended post by William Jacobson over at Legal insurrection, headlined "DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional," rightly notes the uphill battle these arguments face and concludes that "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." It also details and links the four briefs sought to be filed against the Apraio pardon:

I full comprehend all the political and legal reasons why the Arpaio pardon bothers folks, and I will never tell thoughtful advocates that they are wasting their time by filing amicus brief even when the law seems against them.  But, as the title of this post indicated, I still rue the reality that partisan politics so readily energizes a bunch of folks spend lots of time and resources attacking one act of remarkable leniency while so many acts of remarkable severity in our criminal justice systems so rarely engenders even a peep from outside advocates.

September 12, 2017 at 02:44 PM | Permalink


I can only see these sorts of actions as being a way to get a message out (and perhaps as a fund-raising item).

If some normal case were chosen ostensibly to attack the severity of normal process it would most likely fly under the radar even if it were successful in that one particular instance (however remote the prospect of success might be regarding such an outcome).

When viewed as an indirect maneuver this is most likely the right move from a game theory standpoint. After all, it did work to generate additional commentary beyond just whatever press release these groups may have published in addition to their actual briefs.

Posted by: Soronel Haetir | Sep 12, 2017 3:52:32 PM

But, Doug, they are wasting their time, nor would I say that they are being especially "thoughtful" regardless of the merits of Trump's decision. The Supreme Court has expressly held that criminal contempt of a federal court constitutes an "Offense against the United States" within the meaning of the Pardon Clause. Indeed, the Court specifically considered and rejected precisely the sort of separation of powers arguments raised here. Ex Parte Grossman, 267 U.S. 87, 121 (1925).

Posted by: Sam Morison | Sep 12, 2017 6:09:21 PM

But Sam, the constitution must have evolved so much in the last 90 years.... :-)

Posted by: Doug B. | Sep 12, 2017 6:30:46 PM

I'm sympathetic to their concerns but sorry. Doesn't really work.

Criminal law is in place to protect various interests, including security of each branch of the government. There are laws in place, e.g., to protect members of the judiciary from physical attack by litigants upset with their judgments. This tragically is not something even in this country is totally a theoretical concern.

If a pardon was used in such a case, because it is argued that the prosecution is unjust -- thus the argument is in effect battling the merits of the prosecution ("doing his job") -- is such a pardon illegitimate? Plus, there are various means to enforce judicial orders, not just criminal contempt. Finally, he isn't in office. If nothing else, it looks like in this case that finally the political process dealt with that. The chances of him in his mid-80s with all this controversy being elected again is dubious.

Posted by: Joe | Sep 12, 2017 7:12:27 PM

The check is basically politically, up to and including impeachment.

If you want more limits on the pardon power, you need a more limited grant of power. Some states have them. The Constitution does not. Judicial power is important but so is civil rights of others. But, the pardon power can be used even if civil rights workers are killed. Again, the power is broad, though there are limits outside of judicial review.

Posted by: Joe | Sep 12, 2017 7:15:37 PM

This is a frivolous claim to harass the President.

All costs should be assessed to the personal assets of the plaintiffs and to those of any lawyer on their side. To deter.

Then, I would like to know if these lawyers have an Arizona license, or have been admitted to the court pro hac vice.

They are in violations of Arizona's ER 3.1.


Posted by: David Behar | Sep 13, 2017 9:14:55 AM

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