Democrats, law professors want Arpaio pardon invalidated

From threats to pardon himself to hints that he’ll give reprieves to former associates targeted by the Mueller investigation, Donald Trump and his presidency have opened the debate again on the limits of executive power to grant mercy in criminal matters.

And now — as the 9th U.S. Circuit Court of Appeals is set to hear a case testing the bounds of that authority — law professors, advocacy groups and 25 Democratic members of Congress are asking the court to invalidate the pardon he granted to former Maricopa County Sheriff Joe Arpaio of Arizona, characterizing it as an unconstitutional violation of the separation of powers.

“[T]he Arpaio pardon epitomizes the unconstitutional executive usurpation, as it undermines the remedial powers of the branch charged with enforcing individual rights: the judiciary,” argued a brief filed by Harvard Law School professor Laurence Tribe and several legal nonprofits last week.

Arpaio’s criminal contempt verdict came in 2017 after a federal judge in Arizona ordered the then-sheriff to stop making immigration arrests and targeting Latinos during traffic stops. He didn’t, and U.S. District Judge Susan R. Bolton found Arpaio guilty of criminal contempt.

But before judgment was entered in the case, Trump pardoned the sheriff, saving him from the possibility of jail time.

On appeal, Arpaio’s lawyers have asked the 9th Circuit to vacate the record below and until now, much of the fighting has been over the court’s controversial decision to appoint a special prosecutor following the U.S. Department of Justice’s decision not to defend the guilty verdict. United States v. Arpaio, 17-10448 (9th Cir., filed Aug. 19, 2016).

Last week’s filings, if the judges assigned to the appeal are persuaded, could radically change the outcome of the case.

A federal court invalidating a presidential pardon is unprecedented, but Tribe, other professors, legal nonprofits and the Democratic lawmakers have noted that the pardon power is not without limits and say the specific conviction at hand is unique: It is intertwined with prior orders aimed at vindicating other plaintiffs’ constitutional rights.

“[T]he Arpaio pardon — both by its terms and as an intentional precedent — encourages Arpaio and his successors to violate court orders into the indefinite future, directly impinging on the judicial power,” Tribe’s brief says. It points out that Trump conditioned the pardon to excuse the Maricopa County Sheriff’s Office from any future orders coming from the civil rights suit filed against Arpaio.

The U.S. Supreme Court has at least once before considered the limitations of a presidential pardon in the criminal contempt context.

In 1925, the justices unanimously ruled that Calvin Coolidge acted well within the strictures of his authority to grant clemency to a speakeasy owner convicted of failing to comply with a court order prohibiting him from selling alcohol at his illicit bar. Ex parte Grossman, 267 U.S. 87 (1925).

But Tribe and the other professors say the decision contemplated a difference between civil and criminal contempt convictions and note that Grossman did not involve the interests of third parties , as the Arpaio civil rights litigation did.

“By pardoning Arpaio, the president signaled to both Arpaio and his successors that the Melendres injunction — the same coercive order that Arpaio flouted and one specially crafted to provide continuing protection to the plaintiffs and others similarly situated — may be violated with impunity,” the legal scholars’ brief says.

The theory faces a steep, uphill battle, according to Brian C. Kalt, a professor at Michigan State University College of Law who is an expert in constitutional law.

“It’s an innovative, creative argument, but I find it unpersuasive,” he said in an email. “I think that criminal contempt is unique, for the reasons they argue in the briefs, but I don’t think that’s enough to take it outside of the president’s pardon power.”

The Democratic congressional brief, whose signatories include House Judiciary Committee Chairman Jerrold L. Nadler and presidential candidate Eric Swalwell, advances a slightly different theory, arguing that Grossman has effectively been overturned — or at the very least — undermined by more recent high court decisions.

“Any reading of Grossman as holding that the executive’s power to pardon is absolute and unreviewable, or that contempt of court is just another crime that gives rise to no particular concern for the independence of the judiciary, is incompatible with later decisions on claims of absolute, unreviewable executive branch power,” the document says.

And a prohibitory injunction — like the one in Arpaio’s case — can only have force, they say, if the court has the power to make a party like Arpaio comply. With no monetary gains to take away from him, contempt is the only way to secure cooperation, they argue.

Margaret Love, a Washington, D.C. lawyer who previously worked in the Justice Department’s pardon office, agreed with Kalt’s conclusion that both briefs will likely be unsuccessful, but said the congressional argument is the more convincing of the two.

“If a Section 1983 prohibitory injunction is unenforceable without criminal contempt, then the civil/criminal distinction in Grossman is not squarely on point,” she said, summarizing the argument.