Judge Has Option of Invalidating Arpaio Pardon

After Trump announced the pardon, Arpaio moved to have his criminal conviction dismissed. Judge Bolton vacated the date that had been set for sentencing and scheduled an October 4 hearing to rule on Arpaio’s dismissal motion.

If the judge determines Trump’s pardon was invalid, she could sentence Arpaio for his contempt conviction, thereby provoking an appeal.

Arpaio was not simply convicted of committing a criminal offense. He was convicted of criminal contempt for refusing during an 18-month period to obey a court order to stop violating the Fourth Amendment. His contempt conviction stems from a civil class action lawsuit filed by Arpaio’s victims.

“No person shall … be deprived of life, liberty, or property without due process of law,” the Fifth Amendment’s Due Process Clause says. It “protects the rights of private litigants to bring their claims before an impartial and empowered court and prohibits extreme and arbitrary actions of government officials, including the Executive Branch,” the PDP amicus reads.

“Due process is violated if the President can eviscerate a court’s ability to ensure compliance with the law by those who wrong the rights of private parties,” the PDP lawyers write in their brief. They quote the Supreme Court opinion in the 1998 case County of Sacramento v. Lewis, which says, “the Due Process Clause was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression.”

The Arpaio pardon, the PDP lawyers argue, violates the Due Process Clause “by limiting the protection of private rights, rendering the due process guaranteed by law an empty promise.”

PDP maintains the pardon also “unconstitutionally interferes with the inherent powers of the Judicial Branch,” and thus violates the principle of separation of powers.

The PDP lawyers argue in their amicus brief that the Constitution does not grant the president power to pardon a criminal contempt conviction when (1) it stems from a matter involving the rights of private litigants, and (2) the contempt finding is “a valid and binding exercise of judicial power designed to ensure proper redress for those private litigants’ rights,” particularly when they are constitutional rights.

PDP cites the Supreme Court opinion in the 1987 case Young v. U.S. ex rel. Vuitton et Fils S.A., which said the criminal contempt power is so central to the judicial branch, it may not be left to the mercy of the executive branch. The power to punish those who disobey judicial orders is essential to vindicate the authority of the courts, and should not be dependent on the legislative or executive branches.

“The President may no more use the pardon power to trample the rest of the Constitution and the Bill of Rights, than he may use the Commander-in-Chief power to call down airstrikes on political opponents,” the PDP brief states. “The pardon power does not trump the rest of the Constitution.”

https://www.truthdig.com/articles/will-judge-overturn-arpaio-pardon/