Protect Democracy Urges Judge to Allow Appeal of Constitutional Issues in Arpaio Pardon

Today, Protect Democracy joined Free Speech for People; the MacArthur Justice Center; and the Coalition to Protect, Preserve and Defend in filing papers urging U.S. District Court Judge Susan Bolton to take action to allow for an appeal to the U.S. Court of Appeals for the Ninth Circuit of the novel constitutional issues raised by President Trump’s pardon of Sheriff Arpaio.  In particular, the brief requests that Judge Bolton appoint a private attorney, as provided for by the Federal Rules of Criminal Procedure, who will pursue an appeal in this matter.

Read the brief.

In an October 4th hearing, Judge Bolton ruled that she was bound by Supreme Court precedent from 1925 to uphold the validity of the Arpaio pardon.  But in so doing, the Court acknowledged  that the Arpaio case involves private constitutional rights, which the 1925 Supreme Court case did not.  Protect Democracy had previously filed briefs arguing that the pardon violated key tenets of the Constitution, including separation of powers and the requirement of due process, and that a private attorney should be appointed to pursue the contempt charges before Judge Bolton.

Protect Democracy’s filing today explains that the judiciary’s power to use criminal contempt to enforce court orders is of critical significance to the entire federal judiciary, and so the appeals courts should have an opportunity to weigh in on the constitutionality of the pardon.  It also explains that Rule 42 of the Federal Rules of Criminal Procedure requires appointment of a private attorney when, as here, the Justice Department has declined to pursue a criminal contempt charge.

Ian Bassin, Executive Director of Protect Democracy said:

“Judge Bolton recognized that the Arpaio pardon poses a more significant issue than previous pardon cases. Given the gravity of the stakes for our country and that leading scholars have concluded this pardon violates the Constitution, it’s critical that it be reviewed by higher courts. It cannot be the case that there’s no way for higher courts to do that – that’s not how our system works.”