Ar­paio faces chal­lenges to Trump par­don

Court col­lects briefs ar­gu­ing pres­i­den­tial move is il­le­gal

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DINAN

Pres­i­dent Trump’s par­don for for­mer Sher­iff Joe Ar­paio may not be the last word in the case.

A num­ber of the for­mer Ari­zona law­man’s po­lit­i­cal op­po­nents have filed briefs this week urg­ing the judge who con­victed him to at least leave the stain on his record and even con­sider re­fus­ing to rec­og­nize the par­don, forc­ing Mr. Ar­paio to serve jail time.

The anti-Ar­paioans say the for­mer sher­iff’s trans­gres­sions were so bad, and Mr. Trump’s de­ci­sion so un­usual, that the par­don is un­con­sti­tu­tional. One set of lawyers even ar­gued that the court could ap­point a spe­cial pros­e­cu­tor out­side of the Jus­tice De­part­ment to pur­sue a case against Mr. Ar­paio.

U.S. Dis­trict Judge Su­san Bolton hasn’t tipped her hand on whether she will heed the calls but has, at least for now, al­lowed the fil­ings to re­main on the record and has re­fused to ex­punge the

for­mer sher­iff’s con­vic­tion, say­ing she wants to hear full ar­gu­ments be­fore mak­ing a de­ci­sion.

Mr. Ar­paio’s at­tor­neys say the sit­u­a­tion is turn­ing into a farce and that his op­po­nents are the ones per­vert­ing the rule of law.

“It is hys­ter­i­cal yap­ping by peo­ple who are dis­re­spect­ing the rule of law, dis­re­spect­ing the pres­i­dent, dis­re­spect­ing the Con­sti­tu­tion and in­stead be­lieve that their per­sonal agenda and their ha­tred should trump all of those things,” said Mark Gold­man, a long­time friend and part of Mr. Ar­paio’s le­gal team.

Mr. Ar­paio was con­victed of crim­i­nal con­tempt of court this year in a bench trial by Judge Bolton, who ruled that the long­time sher­iff know­ingly vi­o­lated the court’s 2011 or­der di­rect­ing him to cease traf­fic stops that net­ted il­le­gal im­mi­grants whom he then turned over to the fed­eral govern­ment for de­por­ta­tion.

Mr. Ar­paio had ac­cused the judge of bungling the case and had asked for the con­vic­tion to be over­turned or for a re­trial in front of a jury. But be­fore those ar­gu­ments could be de­cided or he could file an ap­peal, Mr. Trump rushed in with a par­don, short-cir­cuit­ing the case.

The for­mer sher­iff said that be­cause he never had a chance to ap­peal and his con­vic­tion wasn’t fi­nal, it should be ex­punged so that it doesn’t ap­pear on his record at all.

His op­po­nents counter that the con­vic­tion should re­main, the par­don should be deemed in­valid and the judge should carry through on sen­tenc­ing Mr. Ar­paio to jail time.

“A dan­ger­ous prece­dent would be set for any fu­ture pres­i­den­tial par­don that im­mu­nizes law en­force­ment of­fi­cers — or other govern­ment ac­tors — from the penal­ties of con­tempt for vi­o­lat­ing ju­di­cial in­junc­tions safe­guard­ing con­sti­tu­tional rights,” Martin Redish, a North­west­ern Univer­sity law pro­fes­sor, said in a brief filed along with two lib­eral ac­tivist groups.

Also weigh­ing in was Er­win Che­merin­sky, a con­sti­tu­tional law pro­fes­sor and dean of Berke­ley Law. He said par­dons can be is­sued only for of­fenses against laws en­acted by Congress, but not for con­tempt of court be­cause that is a breach of the ju­di­cial sys­tem.

“The pres­i­dent’s pur­ported par­don of Mr. Ar­paio is void,” the pro­fes­sor ar­gued.

The Ar­paio le­gal team says those ar­gu­ments fall in the face of the par­don power, which is ab­so­lute. And they said al­low­ing out­side groups to in­ter­vene in a crim­i­nal case is a per­ver­sion of the process and would set a ter­ri­ble prece­dent if av­er­age Amer­i­cans were al­lowed to weigh in with their thoughts on other crim­i­nal cases.

“There is no prece­dent for a judge ig­nor­ing a pres­i­den­tial par­don; there’s equally no prece­dent for third par­ties in­ter­ven­ing,” Mr. Gold­man said.

The Jus­tice De­part­ment has sided with Mr. Ar­paio, say­ing that the prece­dent in cases like this is for all charges to be ex­punged.

“The pres­i­den­tial par­don removes any puni­tive con­se­quences that would oth­er­wise flow from De­fen­dant’s non-fi­nal con­vic­tion and there­fore ren­ders the case moot,” An­nalou Tirol, the act­ing chief of the pub­lic in­tegrity sec­tion of the Jus­tice De­part­ment, said in the brief.

Mr. Gold­man said that by even al­low­ing the for­mer sher­iff’s op­po­nents to file briefs in the case, Judge Bolton is show­ing a dou­ble stan­dard. She was quick to rule out one of the Ar­paio team’s fil­ings be­cause it was af­ter the cut­off date, but hasn’t moved to strike or re­ject fil­ings whose le­gal rel­e­vancy is ques­tion­able, he said.

“We will just be very po­lite and call it in­con­sis­tent,” he said.

P.S. Ruck­man Jr., ed­i­tor of the Par­don Power blog, said there have been ex­am­ples of judges send­ing pres­i­den­tial par­dons back to the Jus­tice De­part­ment, but those have gen­er­ally been cases where the grant cited the wrong date, dis­trict or crim­i­nal charge. Dozens of other par­dons were can­celed be­cause the per­son failed to meet con­di­tions at­tached to the grant.

But he said it’s not clear what Judge Bolton would cite in or­der to re­ject Mr. Ar­paio’s par­don.

“I’m just not re­ally sure what the judge’s play would be on this,” he said.

Mr. Ruck­man said those chal­leng­ing the par­don may be look­ing for a test case to force the Supreme Court to of­fer more solid guid­ance on the lim­its of the pres­i­dent’s par­don power. He said in some prece­dents, the par­don is treated like the ab­so­lute power of a monarch, while in oth­ers the courts seem to en­vi­sion lim­its.

“I get the big pic­ture that’s go­ing on here: try­ing to re­lo­cate the par­don in the con­text of a repub­lic, but I just don’t know this is the path, the con­tempt of court ar­gu­ment,” he said.

In­deed, Mr. Ruck­man on his blog has cat­a­loged dozens of ex­am­ples where pre­vi­ous pres­i­dents gave cle­mency in cases of con­tempt of court, dat­ing back to Pres­i­dent John Quincy Adams in 1827.

Mr. Ar­paio served six terms as sher­iff in Mari­copa County, Ari­zona, be­fore los­ing a re-elec­tion bid last year as im­mi­grant rights ad­vo­cates ral­lied against him for his tough stances.

He said he was hurt by the Obama Jus­tice De­part­ment’s an­nounce­ment that it would pur­sue the con­tempt charges, which came just as early vot­ing be­gan.

He was con­victed in July but im­me­di­ately sought to have the judge toss the rul­ing.

Mr. Trump, in an in­ter­view with Fox News, hinted that he was con­sid­er­ing a par­don, though Mr. Ar­paio, one of his ear­li­est cam­paign sup­port­ers, had not asked for one. Later, at a rally in Phoenix, Mr. Trump as­sured sup­port­ers that the sher­iff would be “just fine.”

The par­don did not go through the usual Jus­tice De­part­ment process, but Mr. Ar­paio’s at­tor­neys did send a let­ter to the White House coun­sel’s of­fice say­ing that if a par­don was com­ing, Mr. Trump shouldn’t wait un­til af­ter sen­tenc­ing.

One of the anti-Ar­paio briefs said that meant Mr. Ar­paio “caused” the par­don, so he shouldn’t ben­e­fit from hav­ing his con­vic­tion ex­punged. But the for­mer sher­iff’s at­tor­neys said no­body but the pres­i­dent can cause a par­don.


HAS HIS BACK: Joe Ar­paio was one of Don­ald Trump’s early cam­paign sup­port­ers be­fore he lost his seat as sher­iff of Mari­copa County, Ari­zona. He was con­victed of crim­i­nal con­tempt of court but was granted a pres­i­den­tial par­don.

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