The brief does have the benefit of being true. But, a lot of truths about Trump - his motives, his intentions, his lack of intelligence and competence - don’t seem to matter in a system that has as protections against him, things the Republicans just will not do.
This is a long reach. On the other hand, the argument that a pardon for a crime involving violation of a court’s order goes to the heart of the judicial system, and the separation of powers.
And, Arizona is in the 9th Circuit, much hated by so-called conservatives.
This one could go all the way to the Supreme Court.
Pardoning Arpaio, denigrating AA NFL players, telling PR to go to hell, calling Mexicans rapists, dismantling minority voting rights…have I time-warped back to the 1800s?
This would be cool. Hopefully we can de-legitimize Donald’s presidency and reverse all the dumb shit he’s done and will do.
Whatever happens here, Sheriff Joe’s legacy lives on in the Maricopa Cty. Sheriff’s Office.
MCSO attorneys acknowledged as much in a status hearing marking progress toward implementing court-ordered reforms. MCSO lawyer Joseph Branco told U.S. District Court Judge Murray Snow that a statistical review of enforcement data had flagged 211 deputies whose treatment of suspects was ethnically uneven.
http://www.phoenixnewtimes.com/news/aclu-court-joe-arpaios-racial-bias-lives-on-at-mcso-9730016
It is indeed a long reach. However, the distinction not being made here is that between direct contempt and criminal contempt. Direct contempt is a crime against the court. The court has sole power to determine guilt and impose punishment. There is no prosecution and the defendant does not have the right to call witnesses, to testify, or to appeal. Criminal contempt of a federal court is a crime against the United States. It is brought by a prosecutor and the accused has the right to call witnesses, to testify, and to appeal. As a crime against the United States it falls within those offenses that the Constitution grants the President authority to pardon.
All convictions are determined by the judicial branch. Therefore any pardon is a usurpation of the powers of the judiciary. That does not invalidate the President’s power of pardon. If this were a matter of direct contempt, there might be an issue, but since it is a matter of criminal contempt, there is not.
“The pardon here is an intentional usurpation of the Court’s authority by the President. President Trump does not pretend that his pardon of the Defendant is based upon the considerations of grace that usually justify the exercise of the pardon power.”
A very good lawyer thought that up and wrote it. The point being that Trump’s pardon is an intentional attack on the judicial branch, whereas this case is usually approached on the footing that the pardon only incidentally and unintentionally diminishes the court’s ability to regulate itself. This is an excellent line of argument.
I kind of doubt that it will. Its a pretty weak case from what I have read, and secondly, this isn’t the hill that anybody in the Judicial branch wants to die on regarding setting limits on the President’s pardoning ability. Indeed, this one pretty much opens the door for every Presidential pardon to be challenged in the courts.
Its quite possible, and should even be expected, that we WILL see legal battles over the limits on pardons in the future. But this one isn’t the one.
See comment by Nemo just above. This case does not involve just a decision by a court, but a decision by a court regarding obedience to one of its orders. It goes to the heart of the courts’ authority. If court orders will not be obeyed–or if those who disobey them can get off scot-free, then nothing remains of the court system, and very little of the constitutional system.
Valid point. But if criminal contempt–willful refusal to abide by a court order–is pardonable, what remains of the courts’ authority to issue orders and have them enforced? And if that authority goes by the board, what remains of the court system?
See comment by @the_loan_arranger regarding criminal contempt vs. direct contempt.
You are overstating what a pardon does. It doesn’t overturn the courts’ authority to issue orders and have them enforced. It pardons one person’s single conviction in one particular case. When Obama pardoned people for drug offenses, it didn’t suddenly invalidate all drug possession laws.
Oof, I wish I could be more hopeful about this one. It sounds a little too much like the line from “A Few Good Men”:
Sam Weinberg: “I strenuously object?” Is that how it’s done? Hm? “Objection, your Honor!” “Overruled” “No, no. I STRENUOUSLY object.” “Oh! You strenuously object. Then I’ll take some time and reconsider.”
Legal types, help me out here, how is this not us “strenuously objecting” to trump’s pardon?
Yes, well put. But apparently the argument being made here isn’t that the president has no power to pardon Arpaio for criminal contempt of court, but that the power in this case has been exercised specifically with the intent to unconstitutionally enhance the power of the executive at the expense of the judicial branch. That may be tough to prove as a matter of fact, but given the extraordinary circumstances–an impenitent defendant, an absence of sentencing, a failure to follow or respect any of the usual considerations and procedures of grace–the court may equally feel unable to dismiss the argument out of hand and may request a full account of precisely how this pardon came about, and whether constitutional bad faith was or was not involved.
In any case, the question remains whether a pardon, even if otherwise validly exercised, can be used to deprive US citizens of the benefit of their constitutional rights.
You may be right. This is why we have courts, and judges and lawsuits.
While it’s probably not going to get much more than a yawn … at least it’s out there as another sticky pile of poop this fake president has added to the court of public opinion.
Actually the case IS being made that the President didn’t have the power to pardon Arpaio. Up till now, there have been no constitutional limits placed upon the President’s pardoning power set by any court. This is clearly an attempt to place such a limit.
In my rather limited opinion, this argument that this one single pardon somehow tilts the entire balance of power between the Executive and Judicial branches is extremely overblown. At its core, this argument could be used for every pardon ever given. After all, after a conviction, the court is the one who orders a sentence be carried out. Does not releasing a convict overturn their powers to levy orders in those cases?
Yes, Trump went down a highly unusual track on this…no statement of remorse, pardoned before sentencing came down, etc. But there is nothing in the Constitution that requires him to jump through any of those loops. In fact, the President has made it fairly clear that he issued the pardon because he believes that this one individual is a great guy. In other words, the President is saying he did all of that legwork in his head in an instant. Crazy?..yes. Unconstitutional?..not even close.
Pardons are, by their inherent nature, one offs, and not a tool to completely subvert the powers of the Courts. This particular one is a political one-off stunt. And I believe the Courts will view it as such. If Trump had spent the past 9 months issuing pardons for every single criminal contempt case, then your argument may have some merit…ie, the President is essentially overturning criminal law without going through Congress…but he hasn’t and he isn’t.
I suspect that the Courts will, quite correctly, view this as a political move, and given there is no precedent for limiting the powers of pardoning, they won’t be inclined to set one now. SCOTUS is quite aware that there is a very distinct possibility that they will be weighing in on the pardoning powers within the next 2 years anyway, and this case isn’t the one they want to set precedent.
Irrelevant. The pardon power cannot be used unconstitutionally because the Constitution specifically grants the President the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This power was clarified a century and a half ago by the Supreme Court. Please read Ex parte Garland, 71 U.S. 333 (1866). The very purpose of this is to “enhance the power of the executive at the expense of the judicial branch.” It allows the President to override the judiciary in specific cases, just as the Constitution allows Congress to override the President’s legislative veto or the judiciary is able to override legislation or executive orders.
but given the extraordinary circumstances–
- an impenitent defendant, – Irrelevant: Penitence is not a constitutional requirement.
- an absence of sentencing, – Irrelevant: A pardon may be granted at any time after an offense is committed or may have been committed.
- a failure to follow or respect any of the usual considerations and procedures of grace – Irrelevant: Again, none of these are constitutional requirements.
–the court may equally feel unable to dismiss the argument out of hand and may request a full account of precisely how this pardon came about, and whether constitutional bad faith was or was not involved.
Courts tend to deal with the law, not fables or fairy tales (at least they’re supposed to). In this case the law, both the Constitution and case law, is clear. Constitutional bad faith is not an issue. Look, we all know how this pardon came about: Arpaio is an asshole buddy of Trump; they both hate brown people, especially Spanish-speaking brown people; Arpaio put his hatred of brown, Spanish-speaking people ahead of his sworn duty to uphold the Constitution of the United States and got convicted of a federal crime because of it; Trump bailed his buddy out using the power granted him by the Constitution. That’s the long and short of it, and it’s a fairly disgusting tale, but it’s not a court case.
The problems is that Arpaio was never convicted of depriving anyone of their constitutional rights. He was convicted of failing to obey a court order. The nature or content of the court order is irrelevant. There is simply no constitutional issue involved in the legal facts. As is so often the case, this isn’t a matter of justice, but of the law.
Not irrelevant. The grant of a power does not constitute the grant of an unreviewable or unlimited power. If you were right, Trump would be able to systematically pardon a series of political allies who defied the courts’ orders in order to promulgate his preferences or policies, and arbitrarily create a class of actors immune from the reach of the law. That seems highly unlikely, given that the rule of law supposedly applies in this country.
It would be nice to see the brief in order to determine how strong the arguments are.