Republic reporters Yvonne Wingett Sanchez and Michael Kiefer talk to former Maricopa County Sheriff Joe Arpaio in his home the night of his pardoning by President Donald Trump. Patrick Breen/azcentral.com
Federal prosecutors who secured a criminal-contempt conviction against former Sheriff Joe Arpaio effectively relinquished their win on Monday, saying President Donald J. Trump’s pardon has nullified the verdict.
But the pardon has also galvanized a slate of non-profits and constitutional attorneys, all who are urging a federal judge to uphold Arpaio’s conviction. At least four separate coalitions have now filed motions opposing the pardon.
In a federal court filing Monday morning, Department of Justice prosecutors agreed with Arpaio’s defense attorneys, who asked U.S. District Judge Susan Bolton to toss Arpaio’s case following the Aug. 25 pardon.
“A pardon issued before entry of final judgment moots a criminal case because the defendant will face no consequences that result from the guilty verdict,” the response stated. “Accordingly, the government agrees that the Court should vacate all orders and dismiss the case as moot.”
Bolton canceled the Oct. 5 sentencing after the pardon, but stopped short of dismissing the case. She instead ordered both Arpaio and DOJ prosecutors to file briefs on why she should or shouldn’t grant Arpaio’s request to vacate.
Arpaio, a political ally and longtime Trump champion, was the recipient of Trump’s first presidential pardon. The announcement came less than a month after Bolton found Arpaio guilty of flouting a federal judge’s orders in a racial-profiling case.
Arpaio’s guilty verdict stems from 2011 federal judge’s order to stop detaining people solely on the basis of their immigration status. Arpaio’s deputies, though, continued to do so for 17 months, and illegally detained at least 171 people.
Typically when defense and prosecuting attorneys agree that a case should be dismissed, a judge will rule accordingly. But on the same day as the DOJ reply, attorneys from across the country filed a flurry of motions to be heard in the case and for Bolton to reject the pardon as unconstitutional.
Attorneys: Pardon violates constitutional rights
The motions were filed independently but follow a similar thread, arguing pardon powers cannot supersede constitutional rights.
Protect Democracy, a non-profit with a mission to block executive overreach, stepped into the fray Monday afternoon. In a brief filed in federal court, the group argued that the power of a presidential pardon is expansive but not unlimited. The pardon of Arpaio, its attorneys said, crosses the line.
“Affirming the constitutionality of the Arpaio Pardon, and granting Defendant’s Vacatur Motion, would mark a dangerous and unconstitutional expansion of the Executive Branch’s power,” the brief stated.
Ian Bassin, Protect Democracy’s executive director and a former associate White House counsel to President Obama, said the Arpaio pardon is an affront to the Fifth Amendment’s due-process clause. This protects citizens against arbitrary and extreme actions by the government by ensuring “no person shall be … deprived of life, liberty or property without due process of law.”
“We think this pardon is unconstitutional and dangerous,” Bassin said. “It’s an unprecedented use, and (challenges) the power of the courts to enforce their own powers to protect people’s rights.”
The motion additionally argues that the pardon violates the separation of power by “impermissibly interfering with the judicial power.”
A contempt case is different than most criminal cases in that it is charged by a judge, who is part of the judicial branch of government, rather than a prosecutor, who is part of the executive branch.
Jean-Jacques Cabou, a Phoenix-based attorney for Protect Democracy, said Arpaio’s conviction is “categorically different” than crimes traditionally pardoned by other presidents.
“There’s a difference between pardoning a conviction for bank robbery or insider trading, and a pardon that comes from contempt, in a case where private people sought protections from the court and got it,” he said. “If private people can’t count on the court to enforce their orders, it’s kind of like saying they don’t have a right to go to court.”
Another brief, filed by attorneys for the MacArthur Justice Center at Northwestern Pritzker School of Law in Chicago, cut to the point.
“This court should deny Joseph Arpaio’s motion to vacate his conviction,” the motion stated in its opening. “The pardon is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”
A third, filed by attorneys for Amici Martin Redish, Free Speech for People and Coalition to Preserve, Protect and Defend, echoed its counterparts’ arguments.
The motion urged the court to invalidate the pardon, “deny Defendant’s Motion and proceed to sentence him.”
Could it work?
The motions were filed as “amicus curiae” or “friend of the court” briefs. Their intent is to offer the court assistance from people who claim to be knowledgeable on the subject matter of a case.
Larry Hammond, a local attorney and a founder of the Arizona Justice Project, filed a fourth brief. His is written on behalf of “law teachers, human rights lawyers and legal scholars,” and also argues that the constitution places barriers on pardon power.
Hammond said that, until Monday, he was unaware the other attorneys and groups would be filing similar motions. But he was pleased they did so.
“It seems quite obvious to me that if respected lawyers from around the country suggest that the pardon is unconstitutional, (Judge Bolton) ought to address that question,” he said. “And I also believe that, although they don’t have to, I believe that the parties themselves will now address that issue.”
However, what the attorneys are asking Bolton to do is most likely unprecedented. None of the attorneys interviewed could name an instance in which a presidential pardon has been voided.
A spokesman for the Department of Justice declined to comment further than what was stated in their motion.
Jack Wilenchik, a defense attorney for Arpaio, said he’s not concerned about the motions.
“These guys have no right to impose themselves in a criminal case,” he told The Republic on Monday. Even victims, he added, have limited rights in such matters.
Wilenchik said defense attorneys would likely respond to oppose the motions. The deadline to reply is two weeks, but Wilenchik said they will probably file it sooner in hopes for a “swift conclusion.”
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