Wednesday, September 27, 2017

Contempt of Courts ... and Congress

Rep John Conyers has filed a brief joined "by more than two dozen Democratic members including Reps. Jerrold Nadler of New York, Zoe Lofgren of California and Sheila Jackson Lee of Texas" qhich argues that Donald Trump's pardon of Sheriff Arpaio for contempt of court has "threatened" a fundamental "judicial power." And, if allowed to stand, "could have severe implications for Congress’s ability to compel compliance with its own investigations and orders.” See story here.

Two words: Francis Townsend.

Wednesday, September 13, 2017

Kobil on Trump's First Pardon

Daniel T. Kobil
At the Columbus Dispatch, Prof. Daniel T. Kobil (Capital University Law School) says Donald Trump's first pardon (Sheriff Joe Arpaio) "set an incredibly low bar for the exercise of his clemency authority." In addition, many see it as "a dry run for politically motivated, pre-emptive pardons of illegal behavior by those in Trump’s circle who are currently being investigated by Robert Mueller in his probe of illegal collusion with Russia."

But Kobil argues "acceptance" of a pardon "operates as an admission" of guilt. So, Trump and Arpaio "cannot have it both ways."
Arpaio cannot be both innocent and excused for his crimes against the United States. According to the Supreme Court, acceptance of a presidential pardon constitutes a confession of guilt. That is why those who are wrongly convicted sometimes refuse to accept a pardon: their response understandably is that “I cannot be forgiven for something I did not do.” Indeed, the consequences of accepting a pardon may be an “even greater disgrace than [that] which it purports to relieve.” Burdick v. U.S. 236 U.S. 79 (1915). 
Kobil also sees "a slim possibility" that Arpaio’s pardon "could be invalidated by the courts" even though the Supreme Court "has construed the pardon power broadly." That is because the Court has also said that it cannot be used in a manner that would “otherwise offend the Constitution” or be “constitutionally objectionable.” See full editorial here.

Tuesday, September 12, 2017

DOJ Says "Enough" Re Arpaio

It is reported that the Justice Department "agrees a judge should erase her finding that the former Arizona sheriff Joe Arpaio violated a court order and was guilty of criminal contempt." This is because President Trump's pardon of Arpaio "guaranteed he would face no consequences from the verdict against him." As the DOJ put it, "the government agrees that the Court should vacate all orders and dismiss the case as moot."

Says the Washington Post:
A pardon does not instantly undo a guilty finding, and in most cases, the court record is left undisturbed. That is because the vast majority of presidential pardons are issued long after people are convicted and sentenced, and pardons generally serve to forgive people, rather than to erase what they have done. 
See story here.

Examples of Executive Clemency for Contempt of Court

John Q. Adams
6/9/1827
Jeremiah Ten Eyck
John Tyler
5/24/1841
John McCalla
John Tyler
1/27/1842
Richard Dixon
Zachary Taylor
12/28/1849
John Smith
James Buchanan
7/22/1858
George S. Selden
Ulysses Grant
10/21/1872
Alexander Hamer
Ulysses Grant
9/27/1875
A.H. Peck
Ulysses Grant
12/9/1876
Harry McFarland
Rutherford Hayes
9/27/1877
John L. Mason
Benjamin Harrison
2/1/1890
Alejandro Savin
Grover Cleveland
12/7/1896
Dong Sun
Grover Cleveland
2/1/1897
Wong Gim
Grover Cleveland
2/18/1897
Thomas Prindevile
William McKinley
5/24/1901
Alexander McKenzie
Theodore Roosevelt
3/25/1902
William H. Weber
Theodore Roosevelt
3/25/1902
John Haddow
Theodore Roosevelt
3/25/1902
David Clarkson
Theodore Roosevelt
3/25/1902
Thomas Braley
Theodore Roosevelt
3/25/1902
Cass Braley
Theodore Roosevelt
5/13/1902
Claude A.S. Frost
Theodore Roosevelt
2/4/1903
James Green
Theodore Roosevelt
3/31/1903
Edward Grant
W.H. Taft
4/26/1909
Sherman S. Smith
W.H. Taft
6/10/1910
Louis K. Pratt
W.H. Taft
6/10/1910
R.E. Leber
Woodrow Wilson
7/25/1918
Donald Swepston
Woodrow Wilson
6/21/1920
O.E. Jennings
Warren Harding
8/9/1921
William J. Creekmore
Warren Harding
3/28/1923
Oscar Danielson
Warren Harding
3/28/1923
Roy Adams
Warren Harding
3/28/1923
Emil Lundgren
Warren Harding
6/19/1922
Asa W. Cambell
Calvin Coolidge
12/3/1921
Charles L. Craig
Calvin Coolidge
12/15/1923
Joseph Heintz
Calvin Coolidge
12/15/1923
Oscar Weinbrod
Calvin Coolidge
12/15/1923
Max Smithberger
Calvin Coolidge
12/20/1923
Phillip Grossman
Calvin Coolidge
12/22/1928
Rosario Lombardo
Calvin Coolidge
1/22/1929
Harry Maynard
FDR
2/13/1940
Hammond
FDR
1/22/1944
Richardson
Truman
12/16/1952
Holland
Truman
12/16/1952
Richardson
Kennedy
6/19/1962
Kiesov

Amicus Brief: Do Not Recognize Trump's Pardon!

Today, Protect Democracy has filed an amicus curiae brief in federal court arguing President trump's pardon of Joe Arpaio last month "is unconstitutional and should not be given effect by the Court." Protect Democracy was represented in its filing by its own attorneys, as well as Jean-Jacques (“J”) Cabou, Shane R. Swindle and Katherine E. May of Perkins Coie LLP in Arizona, and Noah Messing and Phil Spector of Messing & Spector LLP.

Key points from the brief:

“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 pardon power does not trump the rest of the Constitution. The Arpaio Pardon seeks to do just that. This Court should declare the Arpaio Pardon unconstitutional, decline to give that pardon its imprimatur, and deny Defendant’s Vacatur Motion.”

“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.”

“[T]he Arpaio Pardon violates the Due Process Clause of the Fifth Amendment. While the President’s pardon power is broad, it is not unbounded. Like other prerogatives assigned to the Executive Branch, the pardon power cannot be read to negate other provisions of the Constitution. The President could not, for instance, declare pardons for all white people and only white people who had been or might be convicted of federal gun offenses. That would fail to read the pardon power in harmony with the Equal Protection Clause. Similarly, here, the pardon power in Article II must be read in harmony with the later-enacted Due Process Clause.”

“[T]he Due Process Clause in the Fourteenth Amendment protects certain constitutional rights from interference by state officials. The pardon power cannot breach the fundamental constitutional protection of due process. The Arpaio Pardon would do that and so is invalid.” See more on this story here.

Thursday, September 7, 2017

Drain DOJ / OPA Swamp Now !

Regular readers of the blog are aware that FOIA (Freedom of Information Act) requests were granted to the Editor through the entire administration of George W. Bush (eight years) and the Obama administration as well, for the better part of six years, until April of 2015 (see posts here).

Theses requests for information (two sets of dates related to clemency applications) were routinely send, acknowledged by OPA and fulfilled by OPA in a matter of weeks ... two or three weeks max.

Then, William N. Taylor II "Executive Officer" of OPA simply stopped responding to our FOIA requests. He then stopped acknowledging that they were being received at all. Consequently, we waited, quite literally, for years - for any indication whatsoever that his Office was of the opinion that FOIA law applies to its work. The previous pardon attorney (Robert Zauzmer) simply recommended that we simply wait until the Obama administration was over.

Today, Taylor has written the Editor:
This correspondence is in response to your Freedom of Information Act (FOIA) request dated and received in the Office of the Pardon Attorney (OPA) on December 17, 2014.  We have shared quite a bit of correspondence on this subject over the past year, so I apologize for the delay in completing this request.  Pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq., you requested case jackets for the December 17, 2014 grantees. After carefully considering your request, I have determined that no pages are being withheld in full and the attached 6 pages are appropriate for release with redactions, pursuant to 5 U.S.C. § 552(b)(5), which concerns certain inter- and intra-agency communications protected by the deliberative process privilege and the attorney work-product privilege.  No fee has been charged for the search, review or production of these documents.
Previously, Taylor said the dates were lost in a new electronic filing system (yes, he really said that). NOW the two dates that the Editor was given for years, across two administrations are "certain inter- and intra-agency communications protected by the deliberative process privilege and the attorney work-product privilege." Shame on everyone in DOJ who passed out this information, for years, before Taylor came along. How incompetent of all of them!

Bush administration / Obama administration / Pre William N. Traylor II FOIA grant:


William N. Traylor II FOIA grant (after years of considering the matter):




Monday, August 28, 2017

NR on The Pardon

National Review takes the position that President Trump's first pardon was "for the benefit of a political crony" who "repeatedly flouted court orders and detained aliens on suspicion of being in the United States illegally" and the pardon "effectively endorses Arpaio’s misconduct." Further, says NR, if Trump had simply waited, "it is possible that there’d have been no need to consider a pardon."
Instead, Trump’s pardon is so premature that Arpaio was not even eligible under Justice Department guidelines to petition for a pardon. Furthermore, if Arpaio was wrongfully convicted, as his lawyers and allies maintain, the judicial system has been denied the opportunity to reverse the result. While the pardon formally forgives the sheriff’s lawlessness, the legal proceeding to this point will remain (another) mark against him. 
See full editorial here.

Saturday, August 26, 2017

Kobil: On a Pardon for Joseph Arpaio

Prof. Dan Kobil
At the American Constitution Society Blog, Daniel Kobil notes that Donald Trump's pardon of Joseph Arpaio is certainly "within his enumerated powers as president," but it also "could undermine our legal system and the Constitution."

At the time Kobil was writing, the pardon had not yet been announced, and Arpaio was facing a possible 6-month prison sentence. So, he had not yet been sentenced or even applied for clemency through the DOJ (which requires - with exceptions - pardon applicants to wait five years after completing their sentence).

Kobil then notes that it is "highly unusual" for a president to "ignore completely the Justice Department process for processing pardons," but "there is nothing in the Constitution that prevents him from disregarding the established process and issuing pardons at any time." Why shouldn't Trump do such a thing?

First, Kobil argues that it was "unlikely" that a court would have ever sentenced the the 85-year-old Arpaio to a term in prison. Second, "such a pardon would undermine respect for the rule of law and could promote future violations of the Constitution." Trump would be "sending a clear message that government officers can disregard the Constitution, so long as they do so in a manner that would please Trump and his nativist supporters." Third, there remains a slight possibility that the pardon could be challenged in court. The Supreme Court has noted, for example, that pardons cannot be used in a manner that would “otherwise offend the Constitution” or be “constitutionally objectionable.” Says Kobil:
..  surely it would violate the Constitution for the president to impose blatantly unconstitutional conditions on a pardon or use the pardon power in racially discriminatory fashion. See Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 616-120 (1991). 
Another professor has argued that such a pardon might also be overturned on Due Process grounds.  See full piece here.

Friday, August 25, 2017

Trump's First Pardon Stunt.

President Donald Trump has granted the first presidential pardon of his term, almost 400 days earlier than President Obama's first. Still the pardon of former Arizona lawman / political ally Joe Arpaio is hardly a signal that Trump takes the pardon power seriously, or that we can expect clemency applications to start escaping the death grip of the Office of the Pardon Attorney in the Department of Justice.

Hundreds of persons have applied for clemency and have waited for years, some for 10 or 15. Imagine how demoralized they must feel now. Now, more gasoline will be poured on the classic misconception that clemency is only for famous persons, rich people, political supporters, insiders, the "connected." It is, of course, a false narrative, but a powerful one. One that defames a wonderful check and balance and, in some instances, discourages politicians from doing anything. They err on the side of caution (they think) by showing mercy to no one, or to as few as possible.

The Founding Fathers would be so ashamed.

Monday, August 21, 2017

Daily Beast on Possible Arpaio Pardon

The Daily Beast is writing on the possible first pardon by President Trump, who has yet to appoint a new U.S. Pardon Attorney. The Editor of this blog notes, "There are literally hundreds of no-name people we’ve never heard of, who will never been in the newspaper, who are not cause célèbres, who have had applications waiting and waiting and waiting. They’re sick to their stomach right now reading about [the possibility that Sheriff Joe] Arpaio getting a potential pardon, that’s breaking their heart.”

Sam Morison, for U.S. pardon attorney office adviser adds: “He hasn’t even been sentenced yet, he’s just been convicted. And he’s not contrite, he doesn’t accept responsibility—quite the opposite. So in that sense, it’s very unusual. And the only reason he’s getting any traction at all is that he’s a well-known political figure. So it is special pleading of the worst kind.”

Finally, the piece notes, "one former Justice Department official" says, "People would be so grateful that he’s rescued this important Constitutional power from the clutches of the DOJ.” It is so true. But, institutional change is what is really needed. The dysfunctional Office of the Pardon Attorney needs to be tanked and the clemency process needs to be moved closer to the executive branch. See Daily Beast story here.

Saturday, August 19, 2017

Arizona Lawmakers: Just Say No

KJZZ reports that "more than two dozen state lawmakers" have signed a letter "demanding no presidential pardon for the former sheriff of Maricopa County." It is reported that the letter argues a pardon would weaken respect for the law and President Trump "needs to know that once you tamper with justice you’ve lost all trust” (says Rep. Cesar Chavez). Sen. Martin Quezada goes further and says such a pardon would amount to an endorsement of racism and hatred. 25 Democrats signed the letter. See story here.

California: Commutations of Sentence

Governor Jerry Brown commuted the sentences of nine men and women, including "a woman convicted of first-degree murder in Bakersfield." Mary Stroder's sentence was commuted to "25 years to life," which now makes her eligible for parole.  Five other murderers had their sentences commuted as well. See story here.

Friday, August 18, 2017

The First "First 'Political' Pardon" ?

... probably when Thomas Jefferson began his administration with the pardon of two Alien-Sedition Act offenders, one of which was a vocal supporter ... before turning on Jefferson and spreading the Sally Hemings scoop.

Tuesday, August 15, 2017

Post: Trump's First Pardon?

The Washington Post reports President Trump has said: “I am seriously considering a pardon for Sheriff [Joe] Arpaio. He has done a lot in the fight against illegal immigration. He’s a great American patriot and I hate to see what has happened to him.” And the Post adds that the pardon "could happen in the next few days, should he decide to do so." See story here 

Monday, July 24, 2017

Governors and Self Pardons

Max Kutner, at Newsweek, has done his homework. He has discovered that the first governor of the Washington territory, pardoned himself, writing, “I, Isaac I. Stevens, governor of the said territory, by virtue of the authority vested in me as governor, do hereby respite the said Isaac I. Stevens, defendant, from execution of said judgment.”

In addition, an "unnamed governor" identified only as a “popular statesman” was arrested for stealing a horse, found guilty and given a 3 year prison sentence. After being elected governor, he issued himself the pardon. Arkansas Governor Orval Faubus "reportedly" pardoned himself after he was briefly jailed, "a newspaper account said, though the details are unclear."

Kutner also notes legal analysts "have previously used state pardons to argue in favor of presidential ones."
Before 1999, no president had ever granted a pardon for someone who was no longer alive. When President Bill Clinton was considering pardoning Henry Flipper, a former slave who was dismissed from the Army because of allegations of impropriety, lawyers with the firm Arnold & Porter submitted a brief to Clinton in favor of the posthumous pardon, explaining that the precedent existed at the state level. They pointed out that since 1977, nine states had granted such pardons on at least 10 occasions. “We argue that the president’s power is similar to that of state governors, who have granted posthumous pardons,” the attorneys wrote. “Although the constitutional language of the pardon clauses from these states varies, the pardon power in these state constitutions is at least as expansive as the broad authority given to the president in [the U.S. Constitution]. Therefore, the experience of these states is compelling.” 
See full story here.

Kobil on Trump, Pardoning

Prof. Daniel T. Kobil
At the Columbus Dispatch, Prof. Daniel T. Kobil argues that, "as a practical matter there is virtually no chance that any of Trump’s inner-circle will go to jail, even if they are guilty." Why? Because "the president possesses the ultimate power to pardon any violations of federal law, including treason."

Kobil notes Trump can "stop any potential prosecution in its tracks by issuing presidential pardons" and such "can be taken preemptively, before any indictment is brought." The only "remedy" for such behavior is that "the Constitution provides for the possibility of his impeachment and removal." Indeed, "the impeachment and near-conviction of President Andrew Johnson stemmed in part from congressional disapproval of his lenient pardoning practices."

Kobil reasons, however, that impeachment "seems like a long shot" because "Republicans are firmly in control of both houses of Congress and Trump is so popular with the core Republican base." The GOP establishment "rallied around" Nixon for the better part of two years, as Watergate unfolded. See full editorial here.


Sunday, July 23, 2017

Scaramucci on Trump, Russia, Pardons

Incoming White House communications director Anthony Scaramucci on Trump, the Russia investigations and the pardon power:
"The President's thinking about pardoning nobody — because it has been coming up a lot. There's an undercurrent of nonsensical stuff ... This is the problem with the whole system ... He's the President of the United States. If I turn to one of my staff members at SkyBridge, I ask them a question, they run out to the news media and tell everything I'm thinking about, is that fair to the President? ... The truth of the matter is that the President is not going to have to pardon anybody because the Russia thing is a nonsensical thing ... While it makes for interesting academic decisions, let me tell you what the legal team is not doing ... We're not researching the issue, because the issue of pardons is not on the table, there's nothing to pardon from."
See TIME piece here.

Saturday, July 22, 2017

TIME: Guilty of Boredom

It had to happen, sooner or later ... the always-dreaded, poorly drawn up list of "controversial" pardons ... the traditional creation of journalists without serious time or interest in having any understanding of the history of the pardon power (sometimes these things are done more tactfully than others: see CNN attempt here).

So, here come TIME with its list, "Five Times a President Issued a Controversial Pardon" - Richard Nixon, Marc Rich, Scooter Libby (who was not pardoned), Caspar Weinberger, Vietnam draft dodgers. Notice the tendency to barely see beyond one's own nose. The casual reader might guess such pardons are a rarity, and a recent gig.

In fact, every generation of Americans has seen its controversial pardon ... or nine. The tendency, however, is simply to forget, or to let the specter of Richard Nixon retard one's research skills.

Presidents have granted clemency to child molesters, multiple ax murderers, Nazi saboteurs, persons complicit in the assassination of Abraham Lincoln, vampires, wild West outlaws, mafia gangland executioners, a man who tortured and murdered 60 people (one at a time), a Wall Street tycoon who drank a soapy like liquid to simulate the throes of death, who was pardoned so he could go home and die, who then recovered quickly and outlived the president who pardoned him!

Presidents have granted clemency to friends and relatives, campaign advisers and contributors, newspaper men, professional athletes, cabinet members, Hall of Fame race car drivers, best selling authors, movie stars, studio heads, pop musicians ... George Steinbrenner, Tokyo Rose, Jimmy "the Greek," Peter Yarrow ... the guy who produced those cute Boy Scout calendars, back in the day, and the inventor of Mother's Day!

No, TIME, your list of "controversial" pardons is certainly not "wrong." It is simply boring and uninformative.

Pardons: Trump Tweets


Friday, July 21, 2017

Answering CNN's Cillizza

Chris Cillizza, CNN Editor at Large asks Prof. Brian Kalt:
Presidential pardons have become a late-in-the-term move due to the controversy they cause. Has that always been the case, historically speaking?
Here is our answer:

First, it would be more accurate to say that pardons have become a "late-in-the-term move" due to media scrutiny, very often dramatized so as to drum-up scandal, or the appearance of scandal. This is, of course, understandable, to a degree. Viewership / readership matter in the business of journalism. But, the net effect is also exacerbated by the heavy emphasis media place on recidivism - at the expense of countless other real-life stories of wrongful prosecution, disproportionate sentencing, rehabilitation, redemption and reincorporation into society.

It is noteworthy that Willie Horton is often referenced as a benchmark in the hesitancy of governors and presidents to use the pardon power. But Horton was never pardoned by anyone. Think about that.

Second, has late-term pardoning "always been the case, historically speaking?" While it is true that most presidents have granted the largest number of pardons and commutations of sentence in the fourth and final year of the term, they granted pardons and commutations throughout the term, usually every month. Presidents usually granted the first act of clemency early in their term and there were no subsequent patches of many months - much less years (see Clinton, W. Bush, Obama) -  without clemency, followed by a large number of acts at the very end of the term. Large spaces of time without clemency started, roughly, in the Eisenhower administration.

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