Leftist Lawyers Argue Arpaio Pardon Invalid

Constitutional scholars pan Trump's critics for straining to undercut decision's legality

by Brendan Kirby | Updated 31 Aug 2017 at 3:37 PM

Some liberal lawyers have begun arguing that President Donald Trump’s controversial pardon of former Maricopa County, Arizona, Sheriff Joe Arpaio is invalid and could be overturned.

A group called Protect Democracy this week wrote to the head of the Justice Department’s Public Integrity Section, asking him to oppose a motion to vacate and dismiss Arpaio’s conviction on a criminal contempt charge.

The pardon “raises serious constitutional questions,” wrote Ian Bassin, executive director of the organization. He argued that pardoning Arpaio, who was found in contempt for violating a judge’s order to stop profiling Hispanics, violates the Fifth Amendment’s Due Process Clause because it effectively would give a president the ability to prevent a federal judge from protecting the rights of minorities.

"While the Constitution's pardon power is broad, it is not unlimited," Bassin wrote. "Like all provisions of the original Constitution of 1787, it is limited by later enacted amendments, starting with the Bill of Rights."

Even Bassin acknowledged that it was "an extraordinary request" but argued it is justified "because of the president's unprecedented action."

The Constitution states that the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

The Supreme Court in 1925 upheld the commutation of jail time imposed on a defendant who had run a speakeasy during Prohibition and was held in contempt for refusing a court order to stop. But lawyer Brad Miller, a former U.S. representative from North Carolina, argued in a legal blog on Wednesday that much has changed since 1925, including political polarization that makes it virtually impossible for Congress to rein in a rogue president.

"Law professors are trying in vain to think of reasons that this pardon is not valid. There's no case on record anywhere in any court that a pardon is not valid."

"If our Constitution is to survive, there must be some other check on the president's power to pardon those who violate the Constitution with his blessing," he wrote in Justia's Verdict blog.

Other experts, however, argued that the Constitution makes plain that the president's power to pardon people for federal offenses is absolute — except for the caveat that it does not protect officials in the executive branch from impeachment.

"Law professors are trying in vain to think of reasons that this pardon is not valid," said Josh Blackman, a professor at South Texas College of Law in Houston. "There's no case on record anywhere in any court that a pardon is not valid."

Blackman added, "When you put really smart lawyers in a room, they can think of reasons why something is or is not lawful."

Blackman said he is not an Arpaio fan. But he added that he can find no constitutional basis to overturn the pardon.

Georgetown Law Center professor Susan Low Bloch agreed. She said it does not matter that the contempt charge arose from an offense against the court and not an actual statute, as some have argued.

"That's my impression," she said. "That's my opinion."

Previous presidents have kicked up controversy over clemency actions. Some argued former President Barack Obama abused the power by using it to reduce sentences of hundreds of drug dealers because he disagreed with the penalties, and not because of a particular injustice in a specific case.

President Bill Clinton pardoned Marc Rich, a commodities trader who fled the country to avoid tax evasion charges. Hie wife just happened to have contributed more than $1 million to the Democratic Party, $450,000 to the Clinton Presidential Library foundation, and more than $100,000 to Hillary Clinton's Senate campaign.

Gerald Ford issued a blanket pardon to Richard Nixon for crimes related to the Watergate scandal, even though he had not even been charged.

Trump's critics have expressed concern that the Arpaio pardon was a shot across the bow of Robert Mueller, the special counsel who is investigating Russian interference in the 2016 election.

But George H.W. Bush pardoned former Defense Secretary Caspar Weinberger and five other administration officials implicated in the arms-for-hostages Iran-Contra affair. Some speculated that Bush himself may have been involved as vice president, which conjures some comparisons to Trump and the Russia probe. The special prosecutor, Lawrence Walsh, complained at the time that "the Iran-contra cover-up … has now been completed."

But the pardons stood.

Bloch said there is a remedy for a president who corruptly uses his pardon power: impeachment. For instance, if the president accepted a bribe in exchange or a pardon or absolved aides in an attempt to obstruct justice, Congress could remove the president from office.

But in such a case, Blackman said, the person who received the pardon probably would still be in the clear.

Bloch said it is possible — though far from certain — that a pardon could be overturned in extraordinary circumstances. For instance, she said, what if someone delivered a pile of cash to the president in exchange for a pardon?

"I don't know how it would come out," she said. "It might invalidate the pardon. But it would have to be something extreme like that."

Blackman and Bloch both noted that the president also cannot pardon someone for a state offense. So if Arpaio committed a crime under Arizona law, he could still be prosecuted.

Blackman said he also expects Arpaio to be sued and for the plaintiff's lawyer to try to present evidence of the contempt conviction. But he added that it is unlikely the 85-year-old Arpaio ever would be imprisoned for the offense. The real goal, Blackman said, is to attack the pardon.

"This is for show," he said.

(photo credit, homepage and article images: Gage Skidmore, Flickr)

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