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The Aftermath of a Pardon

Department of Justice prosecutors in the contempt case against Arizona Sheriff Joe Arpaio have asked the judge to vacate her decision arguing that Donald Trump’s pardon has nullified the verdict. No doubt this came at the request of Trump and his Attorney General Jefferson Beauregard Sessions III. Trump tried to justify his action falsely comparing it to President Barack Obama commuting Chelsea Manning’s 35 year sentence to time served. But this pardon comes with strong opposition.

DOJ prosecutors agree Arpaio case should be tossed after Trump pardon
By Megan Cassidy, USA Today

But the pardon has also galvanized a slate of non-profits and constitutional attorneys, all who are urging a federal judge to uphold Arpaio’s conviction. At least four separate coalitions have now filed motions opposing the pardon.

In a federal court filing Monday morning, Department of Justice prosecutors agreed with Arpaio’s defense attorneys, who asked U.S. District Judge Susan Bolton to toss Arpaio’s case following the Aug. 25 pardon.

“A pardon issued before entry of final judgment moots a criminal case because the defendant will face no consequences that result from the guilty verdict,” the response stated. “Accordingly, the government agrees that the Court should vacate all orders and dismiss the case as moot.” [..]

Typically when defense and prosecuting attorneys agree that a case should be dismissed, a judge will rule accordingly. But on the same day as the DOJ reply, attorneys from across the country filed a flurry of motions to be heard in the case and for Bolton to reject the pardon as unconstitutional.

The motions were filed independently but follow a similar thread, arguing pardon powers cannot supersede constitutional rights.

Protect Democracy, a non-profit with a mission to block executive overreach, stepped into the fray Monday afternoon. In a brief filed in federal court, the group argued that the power of a presidential pardon is expansive but not unlimited. The pardon of Arpaio, its attorneys said, crosses the line. [..]

The motion additionally argues that the pardon violates the separation of power by “impermissibly interfering with the judicial power.”

A contempt case is different than most criminal cases in that it is charged by a judge, who is part of the judicial branch of government, rather than a prosecutor, who is part of the executive branch.

Jean-Jacques Cabou, a Phoenix-based attorney for Protect Democracy, said Arpaio’s conviction is “categorically different” than crimes traditionally pardoned by other presidents. [..]

Another brief, filed by attorneys for the MacArthur Justice Center at Northwestern Pritzker School of Law in Chicago, cut to the point.

“This court should deny Joseph Arpaio’s motion to vacate his conviction,” the motion stated in its opening. “The pardon is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”

A third, filed by attorneys for Amici Martin Redish, Free Speech for People and Coalition to Preserve, Protect and Defend, echoed its counterparts’ arguments.

The motion urged the court to invalidate the pardon, “deny Defendant’s Motion and proceed to sentence him.” [..]

Larry Hammond, a local attorney and a founder of the Arizona Justice Project, filed a fourth brief. His is written on behalf of “law teachers, human rights lawyers and legal scholars,” and also argues that the constitution places barriers on pardon power. [..]

However, what the attorneys are asking Bolton to do is most likely unprecedented. None of the attorneys interviewed could name an instance in which a presidential pardon has been voided.

A spokesman for the Department of Justice declined to comment further than what was stated in their motion.

The host of HBO’s “Last Week Tonight” John Oliver discusses Trump’s unpardonable pardon the hard nosed sheriff.

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