On April 29, 2019, shortly after the U.S. Supreme Court denied cert in the case of former Maricopa County Sheriff Joe Arpaio, Protect Democracy filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit explaining that President Trump’s pardon of Mr. Arpaio was unconstitutional and, therefore, invalid. The brief argues that the Court needs to reach a decision about the underlying pardon before it can reach a decision about Mr. Arpaio’s request to vacate his conviction for contempt of court. The brief was filed with a bipartisan coalition of organizations and legal experts, including Protect Democracy, Citizens for Responsibility and Ethics in Washington (CREW); The Coalition to Preserve, Protect and Defend; Free Speech For People; MoveOn; Republicans for the Rule of Law; the Roderick and Solange MacArthur Justice Center; Laurence H. Tribe; Martin H. Redish; Lawrence Friedman, and William D. Rich.

STATEMENT OF ADITI JUNEJA, ATTORNEY WITH PROTECT DEMOCRACY:

“The President cannot use his pardon power as a constitutional loophole. Mr. Arpaio ignored a court order to stop systematically abusing the rights of detainees assigned to his care, and the Constitution empowers the court to enforce its rulings. The Framers of the Constitution intended the presidential pardon power to provide mercy in cases where mercy serves justice, not to be used as a political tool to insulate the president and his allies from accountability. The pardon of Joe Arpaio stands in opposition to our constitutional system of laws, the co-equal powers of government, and the oath sworn by the president to take care that the laws be faithfully executed.”

STATEMENT OF LAURENCE TRIBE, CARL M. LOEB UNIVERSITY PROFESSOR AND PROFESSOR OF CONSTITUTIONAL LAW AT HARVARD LAW SCHOOL:

“The Trump pardon of Sheriff Arpaio was a license to violate the civil rights of refugees and immigrants and to defy judicial orders to obey the law. The courts should strike down this blatant abuse of the pardon power, which the Framers designed as a way to temper justice with mercy — not as a way to destroy the very foundations of justice itself.”

STATEMENT OF NOAH BOOKBINDER, EXECUTIVE DIRECTOR, CREW:

“CREW’s interests in promoting ethics and transparency frequently require us to bring cases in federal court. We are deeply concerned by President Trump’s use of the pardon power to undermine the ability of courts to hold in contempt those who violate court orders. The pardon of Joseph Arpaio represents an assault by the President on a co-equal branch of government and threatens the ability of the judiciary to deliver justice.”

STATEMENT OF RON FEIN, LEGAL DIRECTOR, FREE SPEECH FOR PEOPLE:

“President Trump can’t give a free pass to government officials to violate people’s constitutional rights. The Constitution doesn’t permit this type of pardon, and the judge should reject it.”

Background

Since pardoning Mr. Arpaio, President Trump has repeatedly wielded his pardon power as a tool to interfere with investigations into himself and his campaign, and to provide cover for his friends and allies. In February, The New York Times published an article about the President’s efforts to end investigations into himself, including dangled pardons for Trump Campaign officers Paul Manafort and Michael Flynn. In March, lawyers for George Papadopoulos, another Trump Campaign adviser, announced that they had applied for a presidential pardon for their client, who was the first individual charged with a crime in Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election. And in early April, media reports revealed that the President told Kevin McAleenan, head of U.S. Customs and Border Protection, that he would grant a pardon should McAleenan be prosecuted for violating U.S. immigration laws.

Joe Arpaio was convicted of criminal contempt of court in 2017 for violating court orders protecting the constitutional rights of private litigants. President Trump pardoned Mr. Arpaio, who then sought to use the pardon as a basis for vacating his conviction. Protect Democracy filed an amicus brief in the case, explaining that the pardon had exceeded the President’s constitutional authority and was therefore invalid. The District Court rejected Mr. Arpaio’s motion to vacate his conviction, and Mr. Arpaio appealed to the U.S. Court of Appeals for the Ninth Circuit.

In 2018, the Ninth Circuit issued an order appointing a private attorney, Christopher G. Caldwell, in Mr. Arpaio’s appeal case. The order followed a request seeking the appointment by Protect Democracy; Free Speech for People; the Coalition to Preserve, Protect, and Defend; and the Roderick and Solange MacArthur Justice Center. A panel of Ninth Circuit judges affirmed the District Court’s decision, and the case has proceeded with Mr. Caldwell as the private attorney.

Mr. Caldwell argued in a brief filed on April 23, 2019, that by accepting the President’s pardon, Mr. Arpaio had mooted his own case because “a pardon eliminates punishments, but not judgments.” Mr. Caldwell contended that by seeking vacatur of his conviction after accepting a presidential pardon, Mr. Arpaio has sought to “have his cake and eat it too.”