Arpaio (et al.) criminal contempt case

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realist
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Re: Arpaio (et al.) criminal contempt case

Post by realist » Wed Sep 13, 2017 8:54 am

Tesibria wrote:
realist wrote:
Jcolvin2 wrote:http://thehill.com/regulation/court-bat ... fter-trump
DOJ supports Arpaio's request for withdrawal of conviction opinion.
Just as they do with every other person who receives a presidential pardon, right? Right?
This is insane.
I think they were ordered to do so. I'm not sure all of them are happy about that. I found a parenthetical in their brief *very* interesting.
The President’s decision to grant Defendant a “[f]ull and nconditional [p]ardon [f]or [h]is [c]onviction”—and Defendant’s decision to accept it—ends this prosecution. ECF No. 221. The presidential pardon removes any punitive consequences that would otherwise flow from Defendant’s non-final conviction and therefore renders the case moot. See Schaffer, 240 F.3d at 38; cf. United States v. Surratt, 855 F.3d 218, 219 (4th Cir. 2017) (en banc) (Wilkinson, J., concurring) (explaining, in case where commutation by the President mooted defendant’s appeal, that “[a]bsent some constitutional infirmity,” an exercise of the President’s pardon power “simply closes the judicial door”).


... then the Amici briefs were filed, asserting a variety of constitutional infirmities ....


Oh, I have no doubt they were forced to. That was the point of my post. Thank you Trump/Sessions. I also believe it's BS to so move.
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Re: Arpaio (et al.) criminal contempt case

Post by Gregg » Wed Sep 13, 2017 12:15 pm

Myself, I am almost persuaded by the arguments in the briefs, with the lingering memory of the quote about hard cases making bad law. I dunno. While I am still leaning towards the Pardon Power is nigh unlimited, I also think its sad that our current Congress won't consider THIS pardon as grounds for impeachment, for failing to uphold the Constitution etc...

Perhaps, in a brighter world, Mueller could cite it as part of a pattern of obstruction of justice. But for the love of BOB can we someday find what line Trump needs to cross to cause somebody to hold him to account. Do we have to wait until he starts rounding up some group of people and gassing them before we decide he's gone too far?
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Re: Arpaio (et al.) criminal contempt case

Post by Sugar Magnolia » Wed Sep 13, 2017 1:00 pm

Gregg wrote: Do we have to wait until he starts rounding up some group of people and gassing them before we decide he's gone too far?
Even then, I fully expect some segment of the population to excuse and/or support him.

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Re: Arpaio (et al.) criminal contempt case

Post by SLQ » Wed Sep 13, 2017 1:30 pm

realist wrote:I think they were ordered to do so. I'm not sure all of them are happy about that. I found a parenthetical in their brief *very* interesting.
:snippity:

Oh, I have no doubt they were forced to. That was the point of my post. Thank you Trump/Sessions. I also believe it's BS to so move.
The supplemental brief addressing in more detail the necessity of the court appointing a special prosecutor calls out that point, specifically, saying essentially that the Government has conceded that if Constitutional issues are at issue, the Court must first address that, which only a special prosecutor can do.

Edit: The supplemental brief is Doc. 231.

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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Wed Sep 13, 2017 11:53 pm

Docket Update:
09/13/2017 -- 233 -- [Melendres Plaintiffs' Proposed Amici Brief] MOTION to File Amicus Brief as to attorney Kathleen E. Brody by Ortega Melendres Plaintiffs as to Joseph M Arpaio. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Text of Proposed Order)(Brody, Kathleen) (Entered: 09/13/2017)
INTRODUCTION:
The defendant in this criminal action, Joseph M. Arpaio (“Defendant” or “Arpaio”), has moved for vacatur of this Court’s verdict of conviction for criminal contempt of court, the Court’s findings of fact and conclusions of law, and “all verdicts, orders and rulings,” following his acceptance of a presidential pardon. See Proposed Order, Doc. 220-1. Arpaio seeks to erase the past record of his criminal conduct in the litigation before this Court. This is an extraordinary request and the Court should deny it.

Arpaio argues that this case is now moot and that all of the Court’s orders should therefore be vacated. But to the extent this case is now moot, it is solely because he accepted the President’s pardon—an action that, as set forth below, acknowledges guilt. As Arpaio has been found guilty of criminal contempt by this Court, based on the trial record, and has now admitted his guilt by acceptance of the pardon, there is no reason to vacate the Court’s findings and other orders. Those orders constitute the record of Arpaio’s criminal conduct, which violated the order of the U.S. District Court in Ortega Melendres v. Arpaio,1 Case No. 2:07-cv-02513-GMS (D. Ariz.), Doc. 494, and the Fourth Amendment rights of amici, the Plaintiff class in that civil case. Under these circumstances, Arpaio has set forth no valid grounds for the extraordinary equitable remedy of vacatur, and such an order would fundamentally impair the public’s interest in ensuring a full and accurate record in the instant case. Arpaio’s requested vacatur would gravely harm the principle of rule of law which the court in Ortega Melendres sought to protect when it recommended criminal prosecution for Defendant’s contempt. Ortega Melendres v. Arpaio, Case No. 2:07- cv-02513-GMS (D. Ariz.), Doc. 1792, September 19, 2016 Order re Criminal Contempt. Criminal prosecution is an important safeguard against lawless disobedience of court orders. This Court’s July 31, 2017 findings therefore should not be vacated. Rather, this Court’s findings should remain in place and citable as the plain record of the instant litigation, as a rebuke to Defendant’s contempt-of-court in continuing an unconstitutional detention policy, and as a deterrent to others in the future who might defy lawful court orders in pursuit of personal gain. As the Ortega Melendres court noted, “The Sheriff’s defiance has been at the expense of the Plaintiff class” in that case. Id. at 11:11-12. As victims of that defiance and Defendant’s trampling on the Constitution, the Ortega Melendres Plaintiff class requests that this Court deny Arpaio’s vacatur request.

A litigant seeking vacatur of a district court judgment based on mootness bears the burden of showing “equitable entitlement to the extraordinary remedy of vacatur.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994); see also Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996) (a court’s decision to vacate a judgment “is not to be made mechanically, but should be based on equitable considerations”); Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir. 1995) (“U.S. Bancorp makes clear that the touchstone of vacatur is equity.”). Courts must “take account of the public interest” in evaluating the equities. U.S. Bancorp Mortg. Co., 513 U.S. at 26. As the Ninth Circuit observed in United States v. Tapia-Marquez, 361 F.3d 535, 537-38 (9th Cir. 2004), the Supreme Court has never applied the vacatur doctrine, which was developed in the context of civil appeals, in a criminal case like this one. However, even assuming that vacatur is permissible in a criminal case, it is not appropriate here.
ARGUMENT (Headings)
The Court Should Not Vacate Its Orders in Light of Defendant’s Pardon.
A. Any Mootness Is the Result of Defendant’s Voluntary Action
B. Vacatur Would Fundamentally Impair the Public Interest.
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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Thu Sep 14, 2017 9:54 pm

09/14/2017 -- 234* -- ORDER as to Joseph M Arpaio: IT IS ORDERED that the Government file a Supplemental Response, not to exceed five pages in length, addressing the extent to which vacatur should be granted, if at all, given both the absence of an entry of judgment and the authority provided in this Order. The Government shall file and serve its Supplemental Response no later than September 21, 2017. Defendant may file a Reply [see attached Order for details]. Signed by Judge Susan R Bolton on 9/14/17.(MAW) (Entered: 09/14/2017)

09/14/2017 -- 235 -- RESPONSE to Motion by Joseph M Arpaio re: 233 MOTION to File Amicus Brief as to attorney Kathleen E. Brody Defendants Response to Motion for Leave By Ortega Melendres Plaintiffs. (Wilenchik, Dennis) (Entered: 09/14/2017)
*In which the Court calls out the DOJ for citing Arpaio's inapposite cases in agreeing to vacatur and for failing to address Supreme Court and Federal Appellate Court precedent that a pardon does not erase fact or of conviction ... and requires the DOJ to address such cases.
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Re: Arpaio (et al.) criminal contempt case

Post by Sterngard Friegen » Thu Sep 14, 2017 10:05 pm

Reading the judge's order, and the cases she cites, I would argue that she should enter a judgment of conviction and impose no sentence. I'm not sure the pardon means the case should be dismissed. Clearly it doesn't mean a conviction should be "vacated." But "convictions" arise from entered judgments.

So I would argue adjudicate Arpaio guilty and in the judgment of conviction impose no sentence.

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Re: Arpaio (et al.) criminal contempt case

Post by SLQ » Thu Sep 14, 2017 10:31 pm

I like that's she seems to be putting the government on notice. Fish or cut bait. And if you cut bait, I'll find someone else to fish.

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Re: Arpaio (et al.) criminal contempt case

Post by Sam the Centipede » Fri Sep 15, 2017 3:56 am

SLQ wrote:I like that's she seems to be putting the government on notice. Fish or cut bait. And if you cut bait, I'll find someone else to fish.
I don't quite get the "fish or cut bait" subtext, but I am not a lawyer so I don't see nuances clearly. I'll take your word for that.

But I like Judge Bolton's clarity in calling out the DoJ's paper as dishonest bullshit! There's no doubt about her views there. And it really suggests that Judge Bolton is not attracted to the notion of the DoJ and defendant conspiring to nullify her judgment even if she can't prevent the Orange Shitgibbon from nullifying her sentence.

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Re: Arpaio (et al.) criminal contempt case

Post by bob » Fri Sep 15, 2017 11:12 am

The fish-or-cut-bait is inherent in a criminal contempt prosecution: if the court believes the government can't zealously prosecute (because it is going after one of its own, for example), the court can appoint a special prosecutor. And one of the amici was essentially volunteering for the job.

The court here had to do the prosecutor's homework. If the prosecutor's supplemental response doesn't have heart, I would not be surprised if the court concludes the pardon had compromised the government's ability to prosecute, and appoint someone not so compromised.


But I concur with :sterngard: : the court ultimately is going to deny the motion, and enter a judgment with no punishment. And then Arpaio's off to the 9th.

And if Arpaio dies before he exhausts his appeals {NADT), the conviction will get vacated.
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Re: Arpaio (et al.) criminal contempt case

Post by Chilidog » Fri Sep 15, 2017 11:51 am

So am I understanding the issue correctly?

Can the president use his parson power to deny the plaintiffs their due process rights?

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Re: Arpaio (et al.) criminal contempt case

Post by bob » Fri Sep 15, 2017 12:13 pm

Chilidog wrote:Can the president use his parson power to deny the plaintiffs their due process rights?
The criminal contempt prosecution is distinct from the civil suit. The pardon does impede the court's ability to make the plaintiffs whole in the civil suit.
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Re: Arpaio (et al.) criminal contempt case

Post by Northland10 » Fri Sep 15, 2017 1:14 pm

bob wrote:
Chilidog wrote:Can the president use his parson power to deny the plaintiffs their due process rights?
The criminal contempt prosecution is distinct from the civil suit. The pardon does impede the court's ability to make the plaintiffs whole in the civil suit.
Trump and Arpaio probably want the pardon power to deny the plaintiffs their rights. They are, or were, in charge so they should be able to do whatever they want.
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Re: Arpaio (et al.) criminal contempt case

Post by bob » Fri Sep 15, 2017 1:22 pm

Northland10 wrote:Trump and Arpaio probably want the pardon power to deny the plaintiffs their rights. They are, or were, in charge so they should be able to do whatever they want.
At this point in the civil suit, the primary foci are restitution to the class (of injured parties), and compliance with the court's injunction against the MCSO.

The president does not have any say in these issues and, in light of the last election, neither does Arpaio.
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Re: Arpaio (et al.) criminal contempt case

Post by GreatGrey » Fri Sep 15, 2017 3:01 pm

The Pardon has Arpaio feeling a bit cocky. He's having his lawyer threaten to sue people who report that he was convicted.

https://www.lawfareblog.com/open-letter ... -attorneys
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https://twitter.com/AndrewMCrespo/statu ... 6462581760
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Re: Arpaio (et al.) criminal contempt case

Post by Somerset » Fri Sep 15, 2017 10:53 pm

GreatGrey wrote:The Pardon has Arpaio feeling a bit cocky. He's having his lawyer threaten to sue people who report that he was convicted.

https://www.lawfareblog.com/open-letter ... -attorneys

IMG_4637.JPG
https://twitter.com/AndrewMCrespo/statu ... 6462581760
To the IAALs here, is this basically, "I see your silly threat and raise you a SLAPP?"

Also, do any other than jerk lawyers sign off with "Govern yourself accordingly?"

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Re: Arpaio (et al.) criminal contempt case

Post by Fortinbras » Sat Sep 16, 2017 12:01 am

I doubt that a libel suit over a court conviction that was swept away by a pardon would work, and, in fact, I think that the lawyer bringing it would face a rough afternoon with the Disciplinary Committee.

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Re: Arpaio (et al.) criminal contempt case

Post by Sterngard Friegen » Sat Sep 16, 2017 12:25 am

Neither Arizona nor Massachusetts has an Anti-SLAPP statute that would allow the good professor to recover his attorney's fees.

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Re: Arpaio (et al.) criminal contempt case

Post by SLQ » Sat Sep 16, 2017 1:18 am

I am spoiled by TFB. I belong to a FB group of lawyers -- a large group. There was a post today about Judge Bolton's order to the DOJ. There was some discussion, mostly by people who hadn't read any of the amici briefs, a lot of which was misinformed. But Judge Bolton's order was posted, along with the supplemental amici brief on the subject of appointing a special prosecutor. Then this:
why does DOJ have standing to champion Arpaio's interests?
:doh:

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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Sat Sep 16, 2017 2:04 am

bob wrote:
Northland10 wrote:Trump and Arpaio probably want the pardon power to deny the plaintiffs their rights. They are, or were, in charge so they should be able to do whatever they want.
At this point in the civil suit, the primary foci are restitution to the class (of injured parties), and compliance with the court's injunction against the MCSO.

The president does not have any say in these issues and, in light of the last election, neither does Arpaio.
... unless Arpaio gets re-elected. If he does, he can totally ignore any and all Melendres injunctions and orders with impunity, since the Pardon applies to any offenses or charges that MIGHT arise in connection with Melendres v. Alpaio.
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Re: Arpaio (et al.) criminal contempt case

Post by Dan1100 » Sat Sep 16, 2017 2:13 am

Tesibria wrote:
bob wrote:
Northland10 wrote:Trump and Arpaio probably want the pardon power to deny the plaintiffs their rights. They are, or were, in charge so they should be able to do whatever they want.
At this point in the civil suit, the primary foci are restitution to the class (of injured parties), and compliance with the court's injunction against the MCSO.

The president does not have any say in these issues and, in light of the last election, neither does Arpaio.
... unless Arpaio gets re-elected. If he does, he can totally ignore any and all Melendres injunctions and orders with impunity, since the Pardon applies to any offenses or charges that MIGHT arise in connection with Melendres v. Alpaio.
Has there ever been a case where a pardon was granted for future conduct?

The plain language of the pardon clause seems to say that pardons can't be granted for future conduct.
and he shall have Power to grant Reprieves and Pardons for Offenses against the United States
How can there be "Offenses against the United States" to pardon, if the offenses haven't happened yet???
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Re: Arpaio (et al.) criminal contempt case

Post by Sam the Centipede » Sat Sep 16, 2017 3:10 am

Tesibria wrote: :snippity:
... unless Arpaio gets re-elected. If he does, he can totally ignore any and all Melendres injunctions and orders with impunity, since the Pardon applies to any offenses or charges that MIGHT arise in connection with Melendres v. Arpaio.
But in that hypothetical nightmare, wouldn't any subordinate be putting him/herself at extreme risk by disobeying those court orders and injunctions? The pardon doesn't cover them nor does it legitimize the enjoined policies and actions.

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Re: Arpaio (et al.) criminal contempt case

Post by Fortinbras » Sat Sep 16, 2017 8:32 am

I am clearly doing this wrong because ... I cannot find the image/complete text of the pardon granted to Arpaio on the internet. If anyone can link to the complete text of the pardon, please do.

It may be the complete text may provide some clues, some loopholes, e.g. the pardon granted to Hoffa included a restriction that he must not involve himself in a labor union anymore.

Arpaio was facing jail for violating a court order forbidding racial profiling, and that was the subject of the pardon. But Arpaio has been accused of a list of other crimes, some of them state crimes that the President cannot pardon. It could be that a state prosecutor, or maybe even a federal prosecutor, could carry a case involving something other than profiling forward and assure that Crazy Joe can spend some quality time with an assortment of his former guests.

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Re: Arpaio (et al.) criminal contempt case

Post by RTH10260 » Sat Sep 16, 2017 11:21 am

SLQ wrote:I am spoiled by TFB. I belong to a FB group of lawyers -- a large group. There was a post today about Judge Bolton's order to the DOJ. There was some discussion, mostly by people who hadn't read any of the amici briefs, a lot of which was misinformed. But Judge Bolton's order was posted, along with the supplemental amici brief on the subject of appointing a special prosecutor. Then this:
why does DOJ have standing to champion Arpaio's interests?
:doh:
Cause Sessions fears the wrath from Der Führer and has preventively ordered his underlings to clear the minefield for the ex-Sheriff.

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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Sat Sep 16, 2017 11:50 am

Fortinbras wrote:I am clearly doing this wrong because ... I cannot find the image/complete text of the pardon granted to Arpaio on the internet. If anyone can link to the complete text of the pardon, please do.
.... have you checked the link on WYE?
Fortinbras wrote:It may be the complete text may provide some clues ...
Indeed it does ...
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