Protect Democracy Asks Judge in Arpaio Case to Declare his Pardon Unconstitutional

  • September 11, 2017

Today, Protect Democracy filed an amicus curiae (“friend of the court”) brief in federal court arguing that the pardon President Trump issued to former Sheriff Joe Arpaio last month is unconstitutional and should not be given effect by the Court.  The brief follows up on a letter to the Department of Justice that Protect Democracy co-authored with Free Speech for People last month.

As the brief explains, while the President’s pardon power is broad, it is not unbounded. Like other prerogatives assigned to the Executive Branch, “The pardon power does not trump the rest of the Constitution.”  The Arpaio pardon violates the due process of law at the heart of the Constitution as well as core separation of powers features of the Constitution.

You can read the full brief here.  

The brief has been filed in response to former Sheriff Joe Arpaio’s motion to the court to vacate his conviction altogether. Judge Susan Bolton has set oral argument on that request for October 4, 2017, and withdrew a prior order setting forth a schedule for briefing on sentencing. Protect Democracy obtained permission from the Department of Justice to file today’s amicus brief.

Protect Democracy was represented in its filing by its own attorneys, as well as Jean-Jacques (“J”) Cabou, Shane R. Swindle and Katherine E. May of Perkins Coie LLP in Arizona, and Noah Messing and Phil Spector of Messing & Spector LLP.  Mr. Messing also teaches at Yale Law School.

Key points from the brief:

“The President may no more use the pardon power to trample the rest of the Constitution and the Bill of Rights, than he may use the Commander-in-Chief power to call down airstrikes on political opponents. The pardon power does not trump the rest of the Constitution. The Arpaio Pardon seeks to do just that. This Court should declare the Arpaio Pardon unconstitutional, decline to give that pardon its imprimatur, and deny Defendant’s Vacatur Motion.”

“Affirming the constitutionality of the Arpaio Pardon, and granting Defendant’s Vacatur Motion, would mark a dangerous and unconstitutional expansion of the Executive Branch’s power.”   

“[T]he Arpaio Pardon violates the Due Process Clause of the Fifth Amendment.  While the President’s pardon power is broad, it is not unbounded.  Like other prerogatives assigned to the Executive Branch, the pardon power cannot be read to negate other provisions of the Constitution.  The President could not, for instance, declare pardons for all white people and only white people who had been or might be convicted of federal gun offenses.  That would fail to read the pardon power in harmony with the Equal Protection Clause. Similarly, here, the pardon power in Article II must be read in harmony with the later-enacted Due Process Clause.”

“[T]he Due Process Clause in the Fourteenth Amendment protects certain constitutional rights from interference by state officials. The pardon power cannot breach the fundamental constitutional protection of due process. The Arpaio Pardon would do that and so is invalid.”