Cant Pardon Arpaio

[struggle4progress]

By MARTIN H. REDISH
AUG. 24, 2017

... This is uncharted territory. Yes, on its face the Constitution’s pardon power would seem unlimited. And past presidents have used it with varying degrees of wisdom, at times in ways that would seem to clash with the courts’ ability to render justice. But the Arpaio case is different: The sheriff was convicted of violating constitutional rights, in defiance of a court order involving racial profiling. Should the president indicate that he does not think Mr. Arpaio should be punished for that, he would signal that governmental agents who violate judicial injunctions are likely to be pardoned, even though their behavior violated constitutional rights, when their illegal actions are consistent with presidential policies.

Many legal scholars argue that the only possible redress is impeachment — itself a politicized, drawn-out process. But there may be another route. If the pardon is challenged in court, we may discover that there are, in fact, limits to the president’s pardon power after all.

The only effective means courts have to prevent or stop governmental violations of constitutional rights is through injunctions. But injunctions have teeth only when they have the potential of a contempt conviction behind them. In other words, in issuing an injunction, a court is saying, “stop doing that or else.” The “or else” is a criminal conviction for contempt, leading to a fine, imprisonment or both. Absent the “or else,” the injunction is all but meaningless ...

... under the Constitution one cannot be deprived of liberty without a court ruling upon the legality of the detention. The power of courts to restrain government officers from depriving citizens of liberty absent judicial process is the only meaningful way courts have to enforce important constitutional protections. But if the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power ...

https://www.nytimes.com/2017/08/24/opinion/trump-arpaio-pardon-arizona-sheriff.html

[JimGinPA]

1. Lock Him Up!

K&R

[Angry Dragon]

2. Good One

[marybourg]

3. I don't know if the article addressed it

(I don't want to use one of my 10 free articles), but it's hard to see who would have standing to bring such a case.

[struggle4progress]

4. I think the original issue was whether local law enforcement can detain individuals

without evidence that the person has committed a crime, that the original suit was brought on the theory that the constitutional rights of particular individuals were violated, and that the injunction issued to stop such detentions until the questions were settled in court

The usual theory, under which a President might pardon a federal criminal contempt conviction, seems to be that the criminal contempt is a act against the US, which the President (acting as the representative of the US) might forgive on behalf of the US

But in an unlawful detention, it is not merely the US that is outraged: there is also an individual victim; and if law enforcement can ignore such injunctions without consequence, then individuals may have no recourse when unlawfully detained

There is a potentially dangerous quagmire here, which could lead ultimately to Presidential pardons of his own subordinates when they engaged in a pattern of behavior detrimental to constitutional rights

There thus arises the question: Can the President, through the pardon power, nullify a judicial remedy intended to end the violation of an individual's constitutional rights, without undermining these rights?

I do not know what the courts would decide here, but it might be reasonable to grant standing to the original plaintiffs, on the ground that the injunction was obtained to protect their rights and that a judicial inability to enforcement such an injunction undermined certain constitutional guarantees

[Stonepounder]

7. I've been arguing this ever since the question of Trump pardoning Arpaio.

I could not have put it anywhere near as well as the author of the Op-Ed, but there again I am not even a lawyer, let alone a Constitutional Law Professor. But to Pardon a Criminal Contempt conviction is a direct assault on our Justice system.

As stated in the article, this may very well be a test. If Trump pardons Arpaio and it is allowed to stand unchallenged, then the President has basically taken on himself the power to decide which laws and which parts of the Constitution he wants to obey and which he chooses to ignore and to rule by fiat.

The pardoning of Sheriff Joe could provoke a true Constitutional Crisis, the likes of which this country has not seen before. We may need to go stand by Daniel Webster's grave.

Yes, Dan’l Webster’s dead—or, at least, they buried him. But every time there’s a thunderstorm around Marshfield, they say you can hear his rolling voice in the hollows of the sky. And they say that if you go to his grave and speak loud and clear, “Dan’l Webster—Dan’l Webster!” the ground’ll begin to shiver and the trees begin to shake. And after a while you’ll hear a deep voice saying, “Neighbor, how stands the Union?” Then you better answer the Union stands as she stood, rock-bottomed and copper-sheathed, one and indivisible, or he’s liable to rear right out of the ground. At least, that’s what I was told when I was a youngster.
-The Devil and Daniel Webster - Stephen Vincent Benet

[Bladewire]

5. Trump is a disgusting Pig

[SeattleVet]

6. I thought his conviction was for contempt of court...

for failing for follow court orders to stop violating rights, and not for the rights violations themselves.

[struggle4progress]

8. Yes, it is a contempt conviction -- but the injunction was to stop alleged rights violations