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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Saturday, August 26, 2017

Ousted Arizona Sheriff Pardoned by Trump

That an outlier POTUS like Trump would pardon a firebrand like former Maricopa [Arizona] County Sheriff Joe Arpaigo should surprise no one; they're views are tightly aligned on the illegal immigration issue. It's just that, in this case, the pardon comes right on the heels of the conviction, and at the beginning of the President's term rather than in the traditional eleventh-hour of an administration.

More than a decade ago, a civil rights lawsuit was filed against the ousted Sheriff, alleging that he systematically violated the U.S. Constitution by profiling Latinos and arresting suspects based solely on their nationality in violation of the 4th Amendment's probable cause requirement. Like Trump, former Sheriff Arpaigo has had his differences with federal judges.

In Arpaigo's case, two judges enjoined the sheriff from detaining Latinos based solely on their appearance, and in the absence of any specific evidence that a law had been violated. The sheriff kept up the practice anyway.

Last month, Arpaigo's defiance resulted in a criminal contempt of court misdemeanor conviction. The swiftness of the presidential pardon made it one-of-a-kind.

Normally, presidential pardons are granted only after the appellate process has been exhausted and the convict has been in the penitentiary for several years, if not decades.

In Arpaigo's case, although federal judges Susan Bolton and G. Murray Snow issued an injunction against Arpaigo back in 2011, Snow followed-up with a series of subsequent orders. Thumbing his nose at the judiciary just like Trump has done over the past 18-monts, the sheriff insisted his law enforcement tactics were legal and he kept-up a rigorous campaign of Latino arrests until his ouster.

Article II of the U.S. Constitution grants the president the power, "to grant reprieves and pardons for offenses against the United States..." The SCOTUS has interpreted this power to extend to all federal crimes thus, its scope certainly includes Sheriff Arpaigo's contempt conviction.

One of the problems with wielding the presidential pardon power in real-time is that it seriously intrudes into the realm of the other branches of government. In the Arpaigo case, this pardon lessens the effectiveness of the Constitution as well as our civil rights laws. Also, the case obviously impedes the effectiveness and the powers of federal Article III judges.

Trump [being Trump] might realize just how much power he really has under the Constitution relative to the legislature and the judiciary. Wielding this power from the 4-corners of the document on a real-time, case-by-case basis to prosecute his political agenda could quickly burgeon into a constitutional crisis.

One of the legal challenges arising from this pardon is whether a chief executive can pardon a government official whose illegal conduct affects the constitutional rights of others. For her part, Judge Bolton has invited briefs on this legal issue rather than simply dismissing Arpaigo's case prior to the sentencing hearing.

There is no question Trump has the power to pardon at any point during his term. The constitutional/legal/political question is, should a chief executive exercise his Article II pardon powers to undo a recent conviction based on the political agenda of his administration, especially where the state actor's conduct affects individuals' constitutional rights.

No doubt, there are well-articulated answers on both sides. We here at the Law Blogger would like to hear from our readers on this one. Should Joe Arpaigo have been pardoned? And so soon after his conviction?

Post #604

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