United States v. Arpaio

For over twenty years, Arpaio ran the Maricopa County Sheriff’s Office with shocking cruelty and lawlessness, especially against Latinos. He bragged that one of his jails was “a concentration camp.” On the streets, his office engaged in rampant unconstitutional policing. In 2011, a federal judge issued an injunction in a lawsuit challenging the practice of detaining and searching people for “driving while Latino.” The judge found evidence that the Sheriff’s Office engaged in racial profiling and stopped and detained Latinos Latinos just to determine their immigration status. He ordered the Sheriff’s Office to cease detaining people without reasonable suspicion of a crime.

Arpaio flagrantly ignored the injunction, and in May 2016, the judge found him in civil contempt of court. In July 2017, a second federal judge found him in criminal contempt, which can be punished by imprisonment. Three weeks later, Trump pardoned him. Arpaio then asked the court to dismiss and vacate his conviction.

On August 29, 2017 we submitted a letter to the Department of Justice urging it to oppose the pardon on the ground that it violates the constitutional guarantee of due process of law. On September 11, 2017, we filed a friend-of-the-court brief on behalf of Free Speech For People, Professor Martin Redish and the Coalition to Preserve, Protect, and Defend, asking the federal judge to reject the pardon as unconstitutional and invalid. As explained in our brief, the presidential pardon power is limited by the Due Process Clause of the Fifth Amendment to the United States Constitution, which provides that no person may be “deprived of life, liberty, or property, without due process of law.” Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.

If the President can employ his pardon power to relieve government officers of accountability and risk of penalty for defying injunctions imposed to enforce constitutional rights, that action will permanently impair the courts’ authority and ability to protect those inalienable rights. The result would be an executive branch freed from the judicial scrutiny required to assure compliance with the dictates of the Bill of Rights and other constitutional safeguards. That result is constitutionally unacceptable.

The Department of Justice did not oppose Arpaio’s request. The district court did not address the validity of the pardon, but rejected Arpaio’s request to vacate his conviction entirely. Arpaio appealed.

Since the Department of Justice would not defend the district court’s refusal to vacate Arpaio’s conviction, we joined an amicus brief asking the court of appeals to appoint a special prosecutor to represent the United States. On April 17, 2018, the court issued an order authorizing the appointment of a “special prosecutor to provide briefing and argument to the merits panel” that will hear the appeal of former sheriff Joe Arpaio from the district court’s denial of his motion to vacate his conviction for contempt of court. On October 10, 2018, the court denied en banc rehearing of that order. Pursuant to the April 17, 2018 order, the court appointed Christopher G. Caldwell of the law firm Boies Schiller as special prosecutor for purposes of this appeal. The special prosecutor was limited to the functions a government attorney would have performed in connection with Arpaio’s appeal in the court had the government been willing to perform those functions. Unfortunately, in his briefs and argument, the special prosecutor only argued against vacating the conviction entirely, not questioning the pardon itself.

The panel affirmed the district court’s judgment dismissing Arpaio’s criminal proceeding with prejudice, and denying vacatur of the district court’s verdict finding Arpaio guilty of criminal contempt, in a case in which Arpaio was granted a pardon by the President before the district court could sentence him. The panel held that because the verdict can have no future preclusive effect, Arpaio’s claimed errors in the verdict are moot. The panel did not address our arguments challenging the validity of the pardon itself.