WaPo: “Trump’s pardon of Arpaio can — and should — be overturned”

A new Washington Post op-ed, by Harvard Law Professor Laurence Tribe and Free Speech For People Legal Director Ron Fein, makes the case for overturning President Trump’s pardon of former Sheriff Joe Arpaio.

A federal judge in Arizona will soon consider whether to overturn President Trump’s pardon of former Arizona sheriff Joe Arpaio. The answer to this question has consequences not just for Arpaio and the people he hurt but also for the entire country. And although the conventional legal wisdom has been that a presidential decision to grant a pardon is unreviewable, that is wrong. In this circumstance, Trump’s decision to pardon Arpaio was unconstitutional and should be overturned.

President Trump’s pardon of the Sheriff  came in July, just three weeks after a federal judge found Arpaio in criminal contempt of an injunction in a lawsuit challenging his practice of detaining and searching people based on racial profiling.  The Justice Department argues that the pardon is the end of the matter, but many constitutional law scholars –including our own– disagree. The court has scheduled an Oct. 4 hearing and ordered further briefing, on Arpaio’s request to dismiss his conviction.  We have issued two amicus briefs on the matter, including a brief filed on September 11, and a second one with several key allies filed on September 12.

In their op-ed, Tribe and Fein consider:

Is this use of the pardon power constitutional? In most cases, however controversial, courts should not second-guess the president’s use of the pardon power. But when the Constitution says that the president “shall have Power,” that does not mean unlimited power. It means power that is not inconsistent with other parts of the Constitution.

They conclude, “By pardoning Arpaio for his willful disobedience of a court order to stop violating Arizonans’ constitutional rights, Trump has pulled the republic into uncharted waters. Our best guide home is the Constitution.”

To read the op-ed in full, click here.

 

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