Joe Arpaio’s pardon called unconstitutional

President Trump’s pardon for former Sheriff Joe Arpaio may not be the last word in the case.

A number of the former Arizona lawman’s political opponents have filed briefs this week urging the judge who convicted him to at least leave the stain on his record and even consider refusing to recognize the pardon, forcing Mr. Arpaio to serve jail time.

The anti-Arpaioans say the former sheriff’s transgressions were so bad, and Mr. Trump’s decision so unusual, that the pardon is unconstitutional. One set of lawyers even argued that the court could appoint a special prosecutor outside of the Justice Department to pursue a case against Mr. Arpaio.

U.S. District Judge Susan Bolton hasn’t tipped her hand on whether she will heed the calls but has, at least for now, allowed the filings to remain on the record and has refused to expunge the former sheriff’s conviction, saying she wants to hear full arguments before making a decision.

Mr. Arpaio’s attorneys say the situation is turning into a farce and that his opponents are the ones perverting the rule of law.

“It is hysterical yapping by people who are disrespecting the rule of law, disrespecting the president, disrespecting the Constitution and instead believe that their personal agenda and their hatred should trump all of those things,” said Mark Goldman, a longtime friend and part of Mr. Arpaio’s legal team.

Mr. Arpaio was convicted of criminal contempt of court this year in a bench trial by Judge Bolton, who ruled that the longtime sheriff knowingly violated the court’s 2011 order directing him to cease traffic stops that netted illegal immigrants whom he then turned over to the federal government for deportation.

Mr. Arpaio had accused the judge of bungling the case and had asked for the conviction to be overturned or for a retrial in front of a jury. But before those arguments could be decided or he could file an appeal, Mr. Trump rushed in with a pardon, short-circuiting the case.

The former sheriff said that because he never had a chance to appeal and his conviction wasn’t final, it should be expunged so that it doesn’t appear on his record at all.

His opponents counter that the conviction should remain, the pardon should be deemed invalid and the judge should carry through on sentencing Mr. Arpaio to jail time.

“A dangerous precedent would be set for any future presidential pardon that immunizes law enforcement officers — or other government actors — from the penalties of contempt for violating judicial injunctions safeguarding constitutional rights,” Martin Redish, a Northwestern University law professor, said in a brief filed along with two liberal activist groups.

Also weighing in was Erwin Chemerinsky, a constitutional law professor and dean of Berkeley Law. He said pardons can be issued only for offenses against laws enacted by Congress, but not for contempt of court because that is a breach of the judicial system.

“The president’s purported pardon of Mr. Arpaio is void,” the professor argued.

The Arpaio legal team says those arguments fall in the face of the pardon power, which is absolute. And they said allowing outside groups to intervene in a criminal case is a perversion of the process and would set a terrible precedent if average Americans were allowed to weigh in with their thoughts on other criminal cases.

“There is no precedent for a judge ignoring a presidential pardon; there’s equally no precedent for third parties intervening,” Mr. Goldman said.

The Justice Department has sided with Mr. Arpaio, saying that the precedent in cases like this is for all charges to be expunged.

“The presidential pardon removes any punitive consequences that would otherwise flow from Defendant’s non-final conviction and therefore renders the case moot,” Annalou Tirol, the acting chief of the public integrity section of the Justice Department, said in the brief.

Mr. Goldman said that by even allowing the former sheriff’s opponents to file briefs in the case, Judge Bolton is showing a double standard. She was quick to rule out one of the Arpaio team’s filings because it was after the cutoff date, but hasn’t moved to strike or reject filings whose legal relevancy is questionable, he said.

“We will just be very polite and call it inconsistent,” he said.

P.S. Ruckman Jr., editor of the Pardon Power blog, said there have been examples of judges sending presidential pardons back to the Justice Department, but those have generally been cases where the grant cited the wrong date, district or criminal charge. Dozens of other pardons were canceled because the person failed to meet conditions attached to the grant.

But he said it’s not clear what Judge Bolton would cite in order to reject Mr. Arpaio’s pardon.

“I’m just not really sure what the judge’s play would be on this,” he said.

Mr. Ruckman said those challenging the pardon may be looking for a test case to force the Supreme Court to offer more solid guidance on the limits of the president’s pardon power. He said in some precedents, the pardon is treated like the absolute power of a monarch, while in others the courts seem to envision limits.

“I get the big picture that’s going on here: trying to relocate the pardon in the context of a republic, but I just don’t know this is the path, the contempt of court argument,” he said.

Indeed, Mr. Ruckman on his blog has cataloged dozens of examples where previous presidents gave clemency in cases of contempt of court, dating back to President John Quincy Adams in 1827.

Mr. Arpaio served six terms as sheriff in Maricopa County, Arizona, before losing a re-election bid last year as immigrant rights advocates rallied against him for his tough stances.

He said he was hurt by the Obama Justice Department’s announcement that it would pursue the contempt charges, which came just as early voting began.

Mr. Arpaio was convicted in July but immediately sought to have the judge toss the ruling.

Mr. Trump, in an interview with Fox News, hinted that he was considering a pardon, though Mr. Arpaio, one of his earliest campaign supporters, had not asked for one. Later, at a rally in Phoenix, Mr. Trump assured supporters that the sheriff would be “just fine.”

The pardon did not go through the usual Justice Department process, but Mr. Arpaio’s attorneys did send a letter to the White House counsel’s office saying that if a pardon was coming, Mr. Trump shouldn’t wait until after sentencing.

One of the anti-Arpaio briefs said that meant Mr. Arpaio “caused” the pardon, so he shouldn’t benefit from having his conviction expunged. But the former sheriff’s attorneys said nobody but the president can cause a pardon.