The Power of a Presidential Pardon Is on Trial Even More Than Arpaio

[image-1]The U.S. district court judge who ruled Joe Arpaio was guilty of criminal contempt of court gave lawyers in the case until Thursday, September 21, to convince her what to do now that he’s been pardoned.

The key remaining dispute centers on whether the entire case and all its findings should be wiped clean, along with the former Maricopa County Sheriff's conviction. Prosecutors and Arpaio’s lawyers agreed the ruling should be “vacated” or expunged, but the U.S. Justice Department didn’t put forward an argument why.

“The government’s response does not sufficiently address this issue. Therefore, supplemental briefing is appropriate,” U.S. District Court Judge Susan Bolton reasoned Thursday.

Think of it like instant-replay decisions in the NFL.

President Donald Trump just threw the winning touchdown when he pardoned Arpaio on Aug. 25. Arpaio caught the pass in the end zone when he accepted the pardon. The sideline and end judges (the competing attorneys in our tortured analogy) said everything is all good: Arpaio caught it and his feet were in bounds. But third parties, here a series of unaffiliated lawyers who filed amicus briefs this week, have said something’s wrong.
Bolton, the head referee, now wants to review the video.

What gives her pause is a 1993 case she cited in her order.

“The granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is an executive action that mitigates or sets aside punishment for a crime,” the court ruled in that case.

Attorneys for a half a dozen organizations, including the ACLU, lodged written arguments that the pardon only erases Arpaio’s punishment, not his guilt.

Arpaio’s attorneys argued the entire case is moot and the pardon wipes the entire slate clean as if it never happened. On Thursday, Arpaio’s team repeated that line of reasoning in a new motion asking Bolton to disregard the ACLU’s legal brief on the grounds that it came too late.

“Defendant’s counsel is already hard-pressed to address the numerous, gratuitous, and politically-motivated ‘amicus briefs’ filed by nonparties in this case,” Arpaio’s lawyers wrote.

Then they contested the pillars of the ACLU’s opposition: that Arpaio is still guilty, that exonerating him undermines the rule of law, and that the request to expunge the record is unusual.

“Plaintiffs groundlessly characterize the defendant’s request for vacatur as 'extraordinary.' In fact, the rule of automatic vacatur is an 'established practice' in this circuit and across the country,” Arpaio’s lawyers wrote.

They went on to attack the premise of opponents’ arguments.

“Defendant’s acceptance of a pardon absolutely does not acknowledge guilt,” Arpaio’s lawyers wrote, quoting from the ruling in an 1866 case: “When the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.”

Opponents’ most impassioned arguments, perhaps, came in legal briefs this week and letters to the DOJ prior, in which they said clearing Arpaio’s name completely undermines the sanctity of the law.

Arpaio’s attorneys turned that reasoning on its head.

“The opposite is true. Under our Constitution, the 'rule of law' is not something to be unilaterally invented and applied by district court judges; nor is it made by well-educated and well-paid lawyers. It is made by ordinary Americans, sitting on a jury. It is made by Congress. And it is made by the President, in the form of his power to pardon – an essential part of the 'checks and balances' of the Constitution, especially when it comes to criminal contempt.”

For months, Arpaio’s attorneys have petitioned a jury to decide the former sheriff’s fate. They say giving judges full authority is grossly unfair because they decide everything: what a court order says and means, whether it was violated, whether to prosecute, whether Arpaio was guilty of a crime, what sanction he should get, and whether any appeals have merit.

“Under these circumstances, a presidential pardon is the only check on the ‘tyranny’ of the judicial branch, as Justice (Antonin) Scalia put it — the only guarantee of the ‘rule of law’ by ordinary Americans, of ordinary Americans, and for ordinary Americans,” Arpaio’s attorneys wrote, adding, “And because they could not speak through a jury, they spoke through their president.”

Their president said he pardoned Arpaio because Bolton convicted him for “doing his job.” Now, as with so much involving United States of America v. Joseph M. Arpaio, what happens in court has to do with so much more than the 85-year-old lawman at the center of the drama.

Now it’s the power, meaning, and scope of a presidential pardon that is on trial, if Judge Bolton lets it become that. She has set October 4 to hear arguments in court.