Legal Organizations Demand Justice Department Prosecute Joe Arpaio

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Recently, Donald Trump pardoned former Arizona sheriff Joe Arpaio after he violated a judge’s order regarding the profiling of immigrants. The pardon has caused debate within the legal community regarding its legality. While the president’s power to pardon is very broad, there is some debate as to whether the president can pardon someone for contempt of court regarding the violation of someone’s constitutional rights.

Recently, two organizations, Free Speech for People and  Protect Democracy Project, have written a letter urging the Department of Justice to ignore the pardon and move forward with prosecution. In the letter, they argue that Trump’s pardon undermines the rule of law sends a message to law enforcement officials that they are free to ignore contempt of court charges issued against them.

‘The president’s unprecedented pardon of Arpaio undermines the rule of law by immunizing unscrupulous law enforcement officials from judicial review. Thefoundation of the role of courts as protectors of individual rights will be nullified if they cannot execute and protect their own orders. The pardon itself conveys the unmistakable message that similarly-situated local, state, and federal law enforcement officials need not fear the judiciary, because if they run afoul of a courtorder, the president will pardon them. ‘

The letter also argues that the pardon is unconstitutional because it violates the due process clause. Citing the example of a hypothetical 14th amendment violation, they attempt to highlight the limits of a president’s power to pardon.

‘While the Constitution’s pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth
Amendment’s Equal Protection Clause.

‘Similarly, issuance of a pardon that violates the Fifth Amendment’s Due Process Clause is also suspect. Under the Due Process Clause, no one in the United States (citizen or otherwise) may “be deprived of life, liberty, or property, without due process of law.” But for due process and judicial review to function, courts must able to restrain government officials. Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.’

Another interesting aspect to Trump’s pardoning of Arpaio was there there was no admission of guilt. Normally, a pardon is only issued after an admission of guilt by the president and the offending party. However, Trump stated that Arpaio was “convicted for doing his job.” While Trump is entitled to his opinion, the role of interpreting the Constitution falls to the courts, not the president. The courts find him guilty of contempt of court after violating an order regarding the rights of the people of Arizona. Trump’s pardon effectively overrules the court’s decision.

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