Constitutional Law

Chemerinsky brief argues Trump's pardon of Arpaio is void

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Updated: A proposed amicus brief filed Monday argues that President Donald Trump’s pardon of Sheriff Joe Arpaio is void because it violates the Constitution. The brief (PDF) was submitted to a federal judge in Phoenix who is considering whether the pardon, issued before Arpaio had a chance to appeal his contempt conviction, requires her to vacate the conviction, (sub. req.) reports.

Arpaio was found guilty of contempt for violating a federal judge’s order to stop detaining citizens based only on a suspicion they were in the country illegally. Trump pardoned Arpaio, the former sheriff of Maricopa County, Arizona, on Aug. 25.

On one side is the U.S. Justice Department, which is urging U.S. District Judge Susan Bolton to vacate all orders in the case and dismiss it as moot.

Taking a position against the pardon are the authors of the amicus brief: University of California at Berkeley law dean Erwin Chemerinsky, retired law professor Michael Tigar and lawyer Jane Tigar. The trio argue the pardon is void for three reasons.

First, the brief argues the pardon is not authorized by Article II’s grant of pardon power for “offenses against the United States.” Arpaio’s contempt conviction is not an “offense” within the meaning of that provision, the brief argues.

Second, the amicus brief argues that the pardon violates the principle that Article III courts have a duty to provide effective redress when a public official violates the Constitution.

Third, the brief argues that Article III courts have inherent power to enforce their orders “and this power exists outside and beyond legislative empowerment and executive whim.”

Bolton said in an order (PDF) on Thursday that she was considering dismissing the case without vacating the conviction, report the Washington Post and BuzzFeed News.

Bolton said no final judgment had been entered because Arpaio hadn’t been sentenced, so vacating the conviction and all orders in the case didn’t appear to be an option. She said the government hadn’t provided authority that supports an order of vacatur under similar circumstances and gave the Justice Department until Thursday to file a supplemental brief.

Hat tip to @MikeScarcella, @ChrisGeidner and @ZoeTillman.

See also: “Is president’s pardon power unlimited? Arpaio pardon raises unusual issue”

Typo corrected on Sept. 13. Updated on Sept. 15 to report on Bolton’s filing.

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