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.


Justin Asher Zitler said...

At stake is the independence of the Article III judiciary itself. Legal standing to challenge this pardon adheres solely in the US Attorney whose jurisdiction embraces Maricopa Cty, AZ. Venue lies in the US Distict Court from which the contempt of court emanated.

The crime of contempt of court is not "an offense against the United States", but rather an offense against the authority and dignity of the US District Court which imposed the contempt conviction, as a result of an impartial jury process to which Sheriff Arpaio was Constitutionally due under the 5th and 14th Amendments.

Article III courts are a co-equal branch of the federal government, whose inherent power of contempt in aid of their own jurisdiction may not be Constitutionally curtailed by the Congress, nor infringed upon by the Executive Branch.Otherwise, this apparent abuse of the virtually unlimited pardon power frustrates the twin fundamental principles of separation of powers and checks and balances.

Consequently the prosecutor in the US Atty's office in the Arizona district ought move for appropriate injunctive relief against this particular grant of clemency, before the same Court which issued the contempt citation. The exception indicated here in this controversy relies upon the precedent of, and is as significant to the Rule of Law, as was the establishment of judicial review under Marbury v Madison in 1803.

Justin Asher Zitler

Anonymous said...

Poli sigh.

Anonymous said...

LMAO.. WOW. All this butt hurt over the President pardoning a misdemeanor conviction. Lots of violent felons have been pardoned by previous Presidents. As well as political friends, terrorists, etc. Yet, an 85yr old with a misdemeanor conviction warrants filing lawsuits to attempt to overturn this clemency act (which will be unsuccessful)..?? Yikes.

I think too many are blinded by their political ideology. Pretty sad actually....

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