Challenging abuse of the pardon power
We are part of a coalition of organizations asking the courts to reject the presidential pardon of former Maricopa County, Arizona sheriff Joseph Arpaio as unconstitutional and invalid on the ground that it violates the constitutional guarantee of due process of law. Meanwhile, Arpaio is seeking to have his conviction vacated (wiped out) entirely. The district court refused to vacate the conviction, but the Department of Justice has decided not to defend the district court’s decision on appeal. At our request, the U.S. Court of Appeals for the Ninth Circuit has appointed a special prosecutor to represent the interests of the United States since the government will not.
|Caption||United States v. Arpaio|
|Court||U.S. Court of Appeals for the Ninth Circuit|
|Plaintiffs||United States of America|
|Defendant||Joseph M. 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 is not defending 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 will be 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.
Major case developments
- Amicus brief in district court urging appointment of a private attorney to prosecute appeal (Oct. 16, 2017)
- Amicus brief in court of appeals urging appointment of a private attorney to prosecute appeal (Nov. 8, 2017)
- Court order requiring United States to state its position (Nov. 22, 2017)
- Statement of Department of Justice that it will not contest Arpaio’s appeal (Dec. 13, 2017)
- Amicus reply to statement by Department of Justice (Dec. 20, 2017)
- Court order appointing special prosecutor (Apr. 17, 2018)
- Amicus brief opposing rehearing order appointing special prosecutor en banc (June 22, 2018)
- Arpaio opening brief on appeal (Feb. 9, 2019)
In the news
- Washington Post, Trump’s pardon of Arpaio can — and should — be overturned (Laurence Tribe and Ron Fein)
- Time, Nixon Lawyer: Donald Trump Abused Pardon Power When He Freed Joe Arpaio (John Dean and Ron Fein)
- The Intercept, A Federal Judge Upheld Joe Arpaio’s Pardon, But the Legal Challenge Isn’t Over Yet
- Mother Jones, How a Court Ruling on Joe Arpaio Could Undermine Civil Rights and the Mueller Investigation
- New Friend of the Court Brief Urges Court to Reject Arpaio Pardon
- FSFP Joins Protect Democracy to Urge Ninth Circuit to Appoint Private Attorney to Appeal Unprecedented Arpaio Pardon
- FSFP Joins Protect Democracy to Urge Judge to Allow Appeal of Constitutional Issues in Arpaio Pardon
- Free Speech For People and Allies Ask Judge in Arpaio Case to Appoint Private Attorney to Continue Prosecution of Former Sheriff