Trump, the Arpaio pardon, and the balance of power

Sunday , September 03, 2017 - 4:00 AM2 comments

E. KENT WINWARD, special to the Standard-Examiner

Last week, President Trump pardoned former Arizona sheriff Joseph Arpaio for his federal contempt of court conviction. News coverage tended towards the laudatory for the anti-immigration crowd and derisive from pretty much the rest of the country. To me, the far more interesting question is what the pardon says about presidential power and the balance of power between the judiciary and executive branches.

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I wanted to forgo the news media and go directly to the Arizona District Court to look at what happened in the case. I did a search for Joseph Arpaio on the Arizona District Court's website and found out that he was, and has been, a defendant in 5,958 cases. I tried to narrow my search to cases that had been active in the last month, and I was still at 70. I did a "Ctrl-f," and typed in “United States,” but found nothing in the list of 70 cases. This perplexed me because any criminal case is usually “United States v. Defendant.” I decided to read down the list and finally found “USA v. Arpaio.” (To save you from having to do all that research, here's the case number: 16-01012.)

So far, there are 222 filings in the case since it began. The documentation is voluminous. On July 31, 2017, Judge Susan R. Bolton issued a ruling after a trial finding Arpaio guilty of criminal contempt for knowingly and willfully disobeying an earlier court order. That order prevented the Maricopa County Sherrif’s Office from detaining individuals based solely on the belief that an individual might be unlawfully present in the United States. Arpaio was to be sentenced Oct. 5, 2017.

Also on the court docket, filing No. 221, is the Executive Grant of Clemency. The wording is that the president grants a “Full and Unconditional Pardon” to Arpaio for his criminal contempt conviction, and any other criminal contempt violations that might come from the civil lawsuit. The authority to grant presidential pardons is found in Article II, Section 2, Clause 1 of the Constitution, which reads: “[H]e shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Usually the presidential power to pardon is thought to be, pardon the puns, unimpeachable. There were only two clear limits placed on pardon power in the Constitution. The president did not have authority to pardon for offenses against any of the states. Presidential pardons are only granted in the case of an offense against the United States.

The second limit on the pardon power is impeachment. federal judges, the president, vice president and civil officers of the United States are subject to impeachment. A president cannot prevent impeachment from office with a pardon.

For a couple of centuries now, this has been the legal position on presidential pardons in the United States, but as with many things in the Trump presidency, the deviations from the norm has created the possibility for new limits on the power of the Executive branch to be introduced, including the pardoning authority of the president.

First, the criminal case against Arpaio isn’t over. Arpaio’s attorneys filed a motion with the court, asking that the judge completely remove the conviction from the court’s record. Arpaio’s argument is that with the pardon, all the court’s findings at trial should be wiped out, since the pardon negates Arpaio's right to appeal and clear his name. Therefore, all rulings should be vacated and the case dismissed. While this sounds like having your pardon cake with a scoop of ice cream, there appears to be a split in circuit court opinions on what the impact a pardon has on decisions already made by the court in a criminal case.

As with any split in Circuit Court decisions, the right cases may wind up in the Supreme Court. Given the extreme politically charged nature of it, this case could be around a while.

To be clear, this argument isn’t about whether the pardon is effective. No one seems to be arguing that. The question concerns whether a presidential pardon impacts prior rulings. The coming weeks will show how the court deals with this issue, since the judge in the case issued an order giving the government an opportunity to reply and set a hearing for Oct. 4.

One more potential limit on the president’s pardoning authority may still be introduced into the court battle. Arpaio was convicted of criminal contempt for violating a previous court order that was issued to protect the Fourth Amendment rights of U.S. citizens Legal arguments are floating around that the ability to pardon is limited by amendments to the Constitution, which protect citizens against various infringements on our freedoms by governmental power. The amendments came after the original Constitution, and serve as restrictions on the powers originally granted. Pick your favorite civil liberty and you'll see how the argument works:

A sheriff, charged with criminal contempt for violating a court order that prohibits him from confiscating weapons — an act which violates the Second Amendment — is then pardoned by the president. A sheriff, charged with criminal contempt for violating a court order that prohibits him from arresting participants in a peaceful political rally at the courthouse is granted a presidential pardon. I could go on, but you get the idea. The president cannot use his power to pardon in order to circumvent the Constitution and its Amendments.

This is the very real argument that could be raised in the upcoming weeks. It is unusual, but if we have learned anything in the past eight months, it’s that we live in unusual times.

Even in unusual times, however, the Constitution still protects our liberties. Pardon me if I’m missing something.

E. Kent Winward is an Ogden attorney. Twitter: @KentWinward.

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