Almost as soon as Trump announced his candidacy, Sheriff Joe Arpaio’s critics began looking at the possibility of a pardon for the controversial lawman. When Trump won the election, Arpaio’s pardon seemed guaranteed. It should come as no surprise, then, that his critics have had time to hone their arguments against the constitutionality of the pardon.
And now, less than a month after Trump officially pardoned Arpaio, the first of these challenges are coming to light.
The premise for their arguments hinges on the role of the federal judiciary, and the possibility that Trump’s pardon may have undermined it.
“A public interest law firm,” Politico reports,” the Roderick and Solange MacArthur Justice Center, sought to file an amicus brief in an Arizona district court, where Arpaio is seeking to vacate a conviction after Trump granted him a pardon last month. The brief was initially turned down by a judge on procedural grounds.”
“A second group, the Protect Democracy Project, also filed an amicus brief on Monday arguing that the pardon is unconstitutional.”
Arpaio angered many with his hard-nosed tactics on crime and illegal immigration. The Justice Department ruled that the Maricopa Count Sheriff’s department engaged in systematic profiling of Latinos.
Arpaio was convicted in July of criminal contempt of court after he continued the practices. When Trump pardoned Arpaio in August, he praised what he saw as Arpaio’s “selfless public service.”
The MacArthur Justice Center moved to file in the case on Monday but was warned by Judge Susan Bolton that the motion would be denied in three days if it is not edited to adhere to court procedure.
The MacArthur Justice Center brief claims Trump violated the Constitution because “[the pardon] has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”
“The MacArthur Justice Center (MJC) lawyers argue that, while broad, presidential pardon power can not be used to undermine the judiciary’s ability to enforce the Bill of Rights or the Fourteenth Amendment,” Politico adds.
The pardon, MJC claims, “eviscerates this Court’s enforcement power…by endorsing Arpaio’s refusal to comply with federal court orders.”
On aspect of the pardon that many have called into question is the standing fact that Arpaio has never admitted his guilt. A pardon presumes an admission of guilt. Yet the MJC is worried that the “text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again…and escape criminal liability for future contempt.”
Protect Democracy’s lawyers have taken a similar approach. “We are aware of no case in this Court, the Ninth Circuit or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants,” the lawyers write — and violates due process,” they write.
So where will these legal challenges end? Likely in a higher court.