WaPo And Others Get Judge’s Order Wrong On Hearing Related to Arpaio Pardon.
As my articles here make clear, I believe it was wrong (though not unconstitutional) for Trump to pardon former Sheriff Joe Arpaio. I have described it as a case of “Racist Pardons Racist.” I’ve also written here that I do not believe Trump’s pardon power is not quite absolute.
However, recently the Washington Post and Democratic Underground editorials have overreached in attacking this pardon. They have both focused on an order by the Judge Susan Bolton who criminally convicted Arpaio for contempt of court because Arpaio refused to stop racist police practices. The judge has indeed issued an order, it just doesn’t do what WaPo and the Democratic Underground claimed it did.
According to the WaPo editorial, by Jennifer Rubin, the judge’s order is part of a “legal challenge” to Trump’s pardon. Rubin claims the judge’s new order is scrutiny “from the court itself” over whether Trump has “stretched the pardon power so beyond its original intent.” As discussed below, that characterization of the order is simply false.
Colin Taylor of the Democratic Underground goes even further as he turns the role of the Justice Department in the matter completely backasswards from reality stating:
Bolton ordered that the Department of Justice file a memo and scheduled a hearing for October 4th where the Trump team must publicly argue why a man who was so racist he was convicted of criminal contempt of court for refusing to end his discriminatory racial profiling policies deserves to walk free.
Judge Bolton does no such thing and it would be a very inappropriate order if it did. It would not be proper for a judge to order the DOJ (actually representing the side against Arpaio in this case) to justify the President’s pardon. Their answer would be they don’t have to justify it and it does not have to be justified. The President can issue a pardon for any reason or no reason at all. [Note: see edit and update below discussing Taylor’s effort to correct this error that unfortunately still misses the mark].
So what did happen and what does Judge Bolton’s most recent order really do?
The current order was prompted by a motion by Arpaio’s attorneys. Arpaio’s attorneys (not the DOJ) filed a motion for the conviction to be vacated because of Trump’s pardon. The judge responded by asking Arpaio’s attorneys and the DOJ to file briefs arguing why that motion should be granted (that would be done by Arpaio’s attorneys) or should not be granted (that would be done by the DOJ which actually prosecuted the case against Arpaio).
In short, the Defendant’s attorneys (not the DOJ) filed a motion and the judge ordered the two sides to file competing briefs on the motion. That is standard stuff. That is what judges generally do. There will be competing briefs with the DOJ arguing the pardon does not justify vacating the conviction, in short arguing against Arpaio, exactly the opposite of what the Democratic Underground article suggested.
The question before the court will not be whether the pardon was proper, or meritorious, that’s not relevant. The question will be whether the pardon forms a basis to vacate the conviction as Arpaio’s attorneys want. This is not any sort of legal challenge to the pardon itself and certainly is not as WaPo falsely suggests any kind of hearing to determine whether Trump has “stretched the pardon power so beyond its original intent.”
The worst that happens to Arpaio in this hearing is that he remains convicted of the offense and remains pardoned for it. For the record, that is what will happen. The point of a pardon is to relieve punishment whether guilty or not, whether convicted or not. I predict Arpaio’s motion will be denied. A pardon is not a basis to vacate a conviction. It means only that the conviction will not be enforced by punishment. In fact, per the United States Supreme Court, acceptance of pardon is a tacit admission of guilt.
Edit and Update: I emailed both authors of the editorials I critiqued and Colin Taylor of the Democratic Underground attempted to issue a correction. Unfortunately his correction remains wrong, though he did correct one error. Taylor is open in making a correction stating:
“This article has been updated to reflect that the hearing is to judge whether or not Arpaio’s conviction will be thrown out and does not involve the Justice Department. We apologize for the confusion.”
As explained above, the Justice Department is involved. The Justice Department prosecuted Arpaio and is the party that will argue against vacating Arpaio’s conviction.
This error by Taylor is reflected in the change made to the body of his editorial. He erroneously believes the State of Arizona is involved and will be arguing against vacating Arpaio’s conviction. Taylor now writes:
“The state of Arizona will have their own chance to argue why Arpaio’s conviction should not be vacated, allowing them to publicly, and in great detail, list the full extent of the heinous crimes and misdeeds of Sheriff Joe Arpaio, which include running what he refers to as a concentration camp, torturing his inmates, forcing a woman to give birth in shackles, and refusing to investigate sex crimes against Latina children.”
Let’s be clear about this. The case is captioned “United States of America, Plaintiff v. Joseph M. Arpaio, Defendant.” The State of Arizona is not a party to the case and will not be arguing why Arpaio’s conviction should not be vacated. That job belongs to the United States Department of Justice representing the Plaintiff, the United States of America.
It may seem counter-intuitive that Trump’s Department of Justice is opposed to the Arpaio’s motion to vacate his conviction, but that is nonetheless how it works. Notably, the DOJ is not arguing against the pardon itself, but rather against the position of Arpaio’s attorneys that the pardon is a basis to vacate the conviction.