Arpaio Pardon Unconstitutional, Justice Groups Challenge

Justice groups on Monday filed court briefs urging a judge to reject President Trump’s pardon of the racist ex-sheriff Joe Arpaio.

The same day, prosecutors for the Department of Justice agreed with Trump’s decision — and Arpaio’s lawyers — and stated that Arpaio’s guilty verdict should be vacated.

“A pardon issued before entry of final judgment moots a criminal case because the defendant will face no consequences that result from the guilty verdict,” the Justice Department wrote. “Accordingly, the government agrees that the Court should vacate all orders and dismiss the case as moot.”

Protect Democracy, a nonprofit and nonpartisan rights group ran by several former Obama administration staffers, stated in its filing that to consider Arpaio’s pardon constitutional “would mark a dangerous and unconstitutional expansion of the Executive Branch’s power.”

“While the President’s pardon power is broad, it is not unbounded,” the brief says, adding, “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.”

Trump and Arpaio have long been friends — a fact not lost on Protect Democracy:

“The Arpaio Pardon does not faithfully execute the law; it sends a signal that public officials, so long as they are allies of the President, need not execute the law at all. The President cannot use the pardon power to invite other public officials to violate people’s constitutional rights.”

Arpaio, 85, was found guilty of criminal contempt after violating a court order that instructed him to stop racially profiling Latino motorists. Under Arpaio’s leadership, officers were arresting and detaining motorists simply under the suspicion that they were undocumented immigrants. A 2011 Justice Department report found that Latino drivers in Maricopa County were four to nine times more likely to be stopped than non-Latino drivers.

The MacArthur Justice Center (MJC), a Chicago-based law firm that largely focuses on criminal justice reforms, also voiced concerns over the message the pardon sends to the public.

“The message sent by the pardon is clear: The judiciary should leave law enforcement alone, and allow government officials to achieve ‘law and order’ by violating constitutional rights,” David Shapiro, appellate director of MJC, said in a statement.

“The Arpaio pardon is only the President’s latest assault on the federal judiciary; a succession of statements by the President show an intent to undermine the constitutional function of the federal courts as a check against fundamental deprivations of liberty,” the firm’s brief states.

Prior to pardoning Arpaio, Trump held a rally in Arizona. His remarks, cited by MJC, included asking the crowd, “Was Sheriff Joe convicted for doing his job” — a question that was met with applause.

“The notion that Arpaio was ‘doing his job’ when he ignored the orders of this Court sends a message that state and local law enforcement officials need not fear federal courts trying to enforce constitutional rights — when government officials ignore the courts, they are ‘doing their job,’ and the President will protect them against sanctions,” the filing says.

“The President has pardoned Arpaio in a manner repugnant to our constitutional order, rewarding him for waging war on minority communities and for breaking the law repeatedly and willfully,” MJC concludes. “The least this disgraced lawman should suffer is the stigma of conviction. The nation deserves for his conviction to stand.”

Another brief, filed by Martin Redish, a law professor; Free Speech For People; and the Coalition to Preserve, Protect, and Defend, requested the court “hold the pardon unconstitutional, deny Defendant’s motion, and proceed to sentencing.”

This joint brief also warns about the precedent Trump’s first pardon sends — specifically to law enforcement:

“If the President is permitted to pardon Defendant’s contempt conviction, the signal will be sent to all law enforcement officers that if their unconstitutional actions further presidential policies or preferences, they stand to benefit from the exercise of his pardon power, much as Defendant seeks to benefit here.”

Trump and Arpaio’s relationship extends beyond a mutual disdain for immigration. Arpaio endorsed Trump for president during his campaign, and Trump has been a supporter of Arpaio for quite some time.

Arpaio and Trump both pushed the “birther” movement, making unsubstantiated claims that former President Barack Obama was not born in the United States.

While still serving as sheriff, Arpaio formed a “Cold Case Posse,” which was tasked with investigating the conspiracy. Trump tweeted out his support for Arpaio’s cause in 2012.

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