Arpaio (et al.) criminal contempt case

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Re: Arpaio (et al.) criminal contempt case

Post by tek » Mon Sep 11, 2017 5:30 pm

Jcolvin2 wrote:http://thehill.com/regulation/court-bat ... fter-trump

DOJ supports Arpaio's request for withdrawal of conviction opinion.
IAdefinitelyNAL but separation of powers?
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Re: Arpaio (et al.) criminal contempt case

Post by Tiredretiredlawyer » Mon Sep 11, 2017 5:55 pm

tek wrote:
Jcolvin2 wrote:http://thehill.com/regulation/court-bat ... fter-trump

DOJ supports Arpaio's request for withdrawal of conviction opinion.
IAdefinitelyNAL but separation of powers?
Separation of powers?? :rotflmao: That is SO pre-2017!
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Re: Arpaio (et al.) criminal contempt case

Post by tek » Mon Sep 11, 2017 6:00 pm

Tiredretiredlawyer wrote:
tek wrote:
Jcolvin2 wrote:http://thehill.com/regulation/court-bat ... fter-trump

DOJ supports Arpaio's request for withdrawal of conviction opinion.
IAdefinitelyNAL but separation of powers?
Separation of powers?? :rotflmao: That is SO pre-2017!
I'm just a sentimental fool :daydream:
We are so far down the rabbit hole..

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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Tue Sep 12, 2017 12:03 am

Sept 11 Docket Update

Links to these and all recent criminal case docs also available @ WYE.
09/11/2017 -- 223 -- MacArthur Justice Center Proposed Amicus Brief: First MOTION for Leave to File Amicus Curiae Brief Regarding Arpaio Pardon by Roderick & Solange MacArthur Justice Center as to Joseph M Arpaio. (Attachments: # 1 (PROPOSED) Amicus Brief of Roderick and Solange MacArthur Justice Center in Opposition to Arpaio's Motion to Vacate Conviction)(Shapiro, David) (Entered: 09/11/2017).

09/11/2017 -- 224 -- ORDER as to Joseph M Arpaio: On September 11, 2017, counsel for Amicus Curiae Roderick and Solange MacArthur Justice Center filed a Motion for Leave to File Amicus Curiae Brief Regarding Arpaio Pardon (Doc. 223 ). IT IS ORDERED that the motion will be denied within 3 days of the date of this order if counsel does not comply with the ECF Administrative Policies and Procedures Manual, Section G, specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 9/11/17.(MAW) (Entered: 09/11/2017)

09/11/2017 -- 225 -- RESPONSE to Motion by USA as to Joseph M Arpaio re: 220 MOTION to Dismiss Complaint . (Keller, John) (Entered: 09/11/2017)

09/11/2017 -- 226 -- Additional Attachments to Main Document re: 223 First MOTION for Leave to File Amicus Curiae Brief Regarding Arpaio Pardon (Proposed Order) by Roderick & Solange MacArthur Justice Center as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Shapiro, David) (Entered: 09/11/2017)

09/11/2017 -- 227 -- Redish et al Proposed Amici Brief: MOTION for Leave to File Brief of Amici Curiae Martin Redish, Free Speech for People, and Coalition to Preserve, Protect and Defend In Opposition to Motion of Defendant Joseph Arpaio for Vacatur and Dismissal With Prejudice by Coalition to Preserve Protect and Defend as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Piccarreta, Michael) (Entered: 09/11/2017)

09/11/2017 -- 228 -- Protect Democracy Project Proposed Amicus Brief: MOTION to File Amicus Brief as to attorney Jean-Jacques Cabou by Protect Democracy Project Incorporated as to Joseph M Arpaio. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Text of Proposed Order Proposed Order)(Cabou, Jean-Jacques) (Entered: 09/11/2017)

09/11/2017 -- 229 -- MOTION for Leave to File ERWIN CHEMERINSKY, MICHAEL E. TIGAR AND JANE B. TIGAR'S MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE by Jane B Tigar, Michael E Tigar, Erwin Chemerinsky as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Hammond, Larry) (Entered: 09/11/2017)

09/11/2017 -- 230 -- Chemerinsky et al Proposed Amici Brief LODGED Proposed Memorandum of Amici Curiae Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar by Jane B Tigar, Michael E Tigar, Erwin Chemerinsky as to Joseph M Arpaio re: 229 MOTION for Leave to File ERWIN CHEMERINSKY, MICHAEL E. TIGAR AND JANE B. TIGAR'S MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (Hammond, Larry) (Entered: 09/11/2017)
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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Tue Sep 12, 2017 12:08 am

All of the Amici Briefs are worth reading, imho. But, for those wanting the "highlights" --

223 -- MacArthur Justice Center Proposed Amicus Brief:

From the Intro:
This Court should deny Joseph Arpaio’s motion to vacate his conviction. The pardon is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights. We show in this brief that the adoption of the Bill of Rights and the Reconstruction Amendments altered the original constitutional framework by specifying individual rights to be enforced, in James Madison’s words, by “independent tribunals of justice.” 1 ANNALS OF CONG. 439 (1789) (Joseph Gales ed., 1834). Judicial enforcement of these rights would provide an essential and “impenetrable bulwark against every assumption of power in the legislative or executive.” Id. Whatever the limits of the pardon power may have been when the Constitutional Convention finished its work, the adoption of the Bill of Rights and the Fourteenth Amendment makes clear that the executive power, including the pardon power, cannot be exercised to disable the judicial enforcement of constitutional rights.

ECF 223-1 at 1.
Argument (headings):
I. DEFENDANT’S VACATUR MOTION NECESSARILY REQUIRES THE COURT TO FIRST RESOLVE THE CONSTITUTIONALITY OF THE ARPAIO PARDON.
II. THE ARPAIO PARDON VIOLATES THE DUE PROCESS CLAUSE.
III. THE ARPAIO PARDON EXCEEDS THE PRESIDENT’S AUTHORITY UNDER THE PARDON CLAUSE.
IV. THE ARPAIO PARDON VIOLATES THE SEPARATION OF POWERS BY IMPERMISSIBLY INTERFERING WITH THE JUDICIAL POWER.
Conclusion:
Amicus requests that the Court hold the pardon invalid and deny the motion to vacate.

ECF 223-1 at 13.
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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Tue Sep 12, 2017 12:12 am

227 -- Redish et al Proposed Amici Brief

Intro:
[Amici] respectfully oppose the Motion of Defendant Joseph Arpaio for Vacatur and Dismissal With Prejudice. [Doc. 220]. In the narrow and unprecedented circumstances of this case, the exercise of the pardon power has exceeded the limits that the Due Process Clause of the Fifth Amendment imposes on the President's authority. Accordingly, the Court should hold the pardon unconstitutional, deny Defendant's motion, and proceed to sentencing.

227-2 at 2.
Argument (Headings)
The Exercise of the Pardon Power in the Narrow Circumstances of this Case Undermines Judicial Protection of Constitutional Rights and Exceeds Due Process Constraints on the President's Authority to Pardon
1. The Due Process Clause Qualifies and Limits Otherwise Plenary Powers in the Body of the Constitution
2. Courts Properly Constrain Application of the Pardon Power When its Exercise Conflicts with Due Process
Conclusion:
This case centers on a law enforcement officer's willful violation of court orders protecting constitutional rights. The power to pardon that contempt is the power to destroy the protection of those rights. Amici respectfully urge this Court to find that this unprecedented exercise of the pardon power exceeds the limits of Presidential authority set by the Due Process Clause of the Fifth Amendment to the United States Constitution. The Court should hold that exercise invalid, deny Defendant's Motion and proceed to sentence him.

227-2 at 8.
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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Tue Sep 12, 2017 12:17 am

228 -- Protect Democracy Project Proposed Amicus Brief:

Summary of Argument:
Defendant’s Vacatur Motion asks this Court to take action based on the Arpaio Pardon. Before it may act based on the Arpaio Pardon, the Court must necessarily determine whether that pardon is valid and binding. For the reasons set forth below, the Arpaio Pardon is unconstitutional. It violates the due process of law at the heart of the Constitution as well as core separation of powers features of the Constitution. As such, amicus respectfully requests that the Court declare the Arpaio Pardon null and void and without effect, and accordingly deny Defendant’s Vacatur Motion.

As described more fully below, the Arpaio Pardon runs afoul of three different constitutional commands. Any one of these would suffice to render it unconstitutional; that the Arpaio Pardon fits within the confluence of all three renders it a severe threat to our constitutional order. 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.

First, the Arpaio Pardon violates the Due Process Clause of the Fifth Amendment. * * *

Second, the Arpaio Pardon exceeds the President’s own constitutional authority under the pardon power. * * *

Third, the Arpaio Pardon violates the separation of powers because it unconstitutionally interferes with the inherent powers of the Judicial Branch. * * *

In short, the separation of powers design of the Constitution in Articles II and III and the protection of the rights of the people in the Fifth Amendment point to the same conclusion. The President may not pardon a criminal contempt finding when: (i) the contempt arises out of a matter involving the rights of private litigants and (ii) the contempt is a valid and binding exercise of judicial power designed to ensure proper redress for those private litigants’ rights. That principle reaches its zenith when the private litigants’ rights are constitutional rights. The Arpaio Pardon fits squarely within these criteria and so is invalid.

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.

ECF 228-1 at 2-5.
Argument (Headings)
I. DEFENDANT’S VACATUR MOTION NECESSARILY REQUIRES THE COURT TO FIRST RESOLVE THE CONSTITUTIONALITY OF THE ARPAIO PARDON.
II. THE ARPAIO PARDON VIOLATES THE DUE PROCESS CLAUSE.
III. THE ARPAIO PARDON EXCEEDS THE PRESIDENT’S AUTHORITY UNDER THE PARDON CLAUSE.
IV. THE ARPAIO PARDON VIOLATES THE SEPARATION OF POWERS BY IMPERMISSIBLY INTERFERING WITH THE JUDICIAL POWER.
* * *
[at 14] Lastly, the Arpaio Pardon threatens our constitutional system for yet an additional reason: it breaches the President’s oath to protect and defend the Constitution, see Article II, Section 1, Clause 2, and his duty to faithfully execute the laws, see Article II, Section 3.
Conclusion
For the foregoing reasons, amicus respectfully requests that the Court declare the Arpaio Pardon unconstitutional, decline to give it effect, and accordingly deny the Vacatur Motion.

ECF 228-1 at 16.
Side note: Brief was filed by Perkins Coie attorney.
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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Tue Sep 12, 2017 12:24 am

09/11/2017 -- 230 -- Chemerinsky et al Proposed Amici Brief:

Intro:
The President’s purported pardon of Mr. Arpaio is void. The President’s action is not authorized by the article 2, sec. § 2, limited grant of the pardon power, because Mr. Arpaio’s contempt is not an “Offense” within the meaning of that grant.

In addition, the purported pardon violates two basic constitutional principles. First, Article III courts have a duty to provide effective redress when a public official commits harm by violating the Constitution. As discussed below, Chief Justice Marshall described this duty in Marbury v. Madison, 5 U.S. 137 (1803), and his words have guided the federal courts ever since.

Second, Article III courts possess inherent power to enforce their orders, and this power exists outside and beyond legislative empowerment and executive whim. This power has as good or better a constitutional pedigree than any presidential claim. The Framers of the Constitution believed that this inherent power was, in Hamilton’s words “particularly essential in a limited Constitution.”

ECF 230 at 1-2.
Argument (Headings)
THE CONSTITUTIONAL BASIS FOR, AND LIMITS UPON, THE PARDON POWER

THE CONSTITUTIONAL FOUNDATIONS FOR THE DISTINCTION BETWEEN PUBLIC PROSECUTION FOR “OFFENSES” AND COURT ACTION TO PROTECT LITIGANT RIGHTS AND THE COURT’S OWN PROCESSES

THE FIRST PRINCIPLE: RIGHT TO REDRESS

THE SECOND PRINCIPLE – INHERENT JUDICIAL POWER

INHERENT JUDICIAL POWER, AND THE PARDON POWER
Conclusion:
Few Presidents have questioned their duty to enforce judicial decrees affecting private rights. We can reflect on several of our nation’s proudest moments when Presidents have stepped in to support the federal courts. In 1957, President Eisenhower ordered the military and National Guard to end Arkansas governor Faubus’s resistance to school segregation. In 1962, President Kennedy sent troops and U.S. Marshals to escort James Meredith into the University of Mississippi.

An historic instance of law defiance by a sheriff repays study in this context. In 1906, Ed Johnson, an African-American, was condemned to death in Chattanooga, Tennessee. Supreme Court Justice Harlan granted a stay of execution pending federal review of the case, and remanded Johnson to Sheriff Shipp’s custody. Shipp conspired with others to allow a mob to take Johnson from the jail and lynch him. President Theodore Roosevelt expressed outrage at this defiance of federal court authority. Shipp was prosecuted for and convicted of contempt of the Supreme Court – the only “trial” ever held before that Court. He was sentenced to imprisonment. United States v. Shipp, 203 U.S. 563 (1906), 214 U.S. 386 (1909); see Mark Curriden, Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism (1999). No President till now has proclaimed that a public official who violated the Constitution and flouted court orders was “doing his job.” The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787. By that time, the English people had rejected what Madison termed the “impious doctrine of the Old World that people were made for Kings and not Kings for people.” Federalist No. 45. We respectfully submit that this Court should hold the purported pardon invalid.

ECF 230 at 12-13.
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Re: Arpaio (et al.) criminal contempt case

Post by tek » Tue Sep 12, 2017 7:22 am

Tes, thanks again for pulling the important stuff out for us

:clap:
We are so far down the rabbit hole..

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Re: Arpaio (et al.) criminal contempt case

Post by p0rtia » Tue Sep 12, 2017 8:37 am

Thanks, Tes. :bighug:
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Re: Arpaio (et al.) criminal contempt case

Post by realist » Tue Sep 12, 2017 9:43 am

Thank you, Tes.

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Re: Arpaio (et al.) criminal contempt case

Post by Sam the Centipede » Tue Sep 12, 2017 10:05 am

C'mon law-speaking folk, what do you predict the outcome of this will be?

I thought it had been stated that acceptance of a pardon involves admission of guilt, so the conviction remains but the punishment is discarded. So the if the conviction is vacated, the pardon doesn't exist any more, does it?

My guess is that there will be a lot of cold fury in court chambers, and an unwillingness to let the neo-fascists get away with this disgusting abrogation of the law and constitution. Whether that will translate into action...?

As the neo-fascists start to assert their power, we have shades of 1930s Germany, as public institutions failed to recognize the strength threat and respond to it. The white supremacists are making a huge bid for power now.

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Re: Arpaio (et al.) criminal contempt case

Post by June bug » Tue Sep 12, 2017 10:19 am

Sam the Centipede wrote:As the neo-fascists start to assert their power, we have shades of 1930s Germany, as public institutions failed to recognize the strength threat and respond to it. The white supremacists are making a huge bid for power now.
This...in spades.

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Re: Arpaio (et al.) criminal contempt case

Post by Sterngard Friegen » Tue Sep 12, 2017 11:04 am

If Arpaio had been held in contempt by a judge based on the inherent judicial power, then I agree the conviction would have created separation of powers issues. But he was convicted of a misdemeanor based on an Act of Congress for conduct relating to a court. In my view that's a crime against the United States subject to the pardon power.

The more difficult question is whether the conviction should be vacated. I hope the answer to that question is "no."

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Re: Arpaio (et al.) criminal contempt case

Post by bob » Tue Sep 12, 2017 11:39 am

To add to :sterngard: : Just because the parties agree that the conviction should be vacated doesn't mean the court is obligated to agree. I would not be surprised if the court denied the motion, and kicked the issue up to the 9th.
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Re: Arpaio (et al.) criminal contempt case

Post by SLQ » Tue Sep 12, 2017 1:32 pm

Thanks, Tes!! :lovestruck: Much reading to do. (But work beckons first -- a reply brief due Wednesday.)

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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Tue Sep 12, 2017 6:49 pm

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

Post by SLQ » Tue Sep 12, 2017 6:51 pm

In case anyone wonders what the ECF procedural defect was in the amicus motion, it was apparently failure to send a proposed order and copy of the motion to chambers. Here is that section of the ECF rules manual:
The proposed order, as well as a .pdf version of the related motion or stipulation, should be attached to an Internet e-mail message and sent to the email address of the assigned judge. The subject line of the message should contain the case number and title of the case, and the text of the message should reference the document number assigned to the motion or stipulation assigned by the ECF system when it was electronically filed. A typical e-mail message subject line would appear as follows: "Proposed Order in 2:05cv12345 Smith vs. Jones, et al."
http://www.azd.uscourts.gov/sites/defau ... manual.pdf

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Re: Arpaio (et al.) criminal contempt case

Post by Sterngard Friegen » Tue Sep 12, 2017 9:06 pm

The convenience of electronic filing is trumped by local rules around the country requiring a mandatory "courtesy paper copy." Stupid. But, then, judges are still in the 19th century when it comes to record management, notwithstanding what the rest of the world is doing.

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Re: Arpaio (et al.) criminal contempt case

Post by SLQ » Tue Sep 12, 2017 9:15 pm

Sterngard Friegen wrote:The convenience of electronic filing is trumped by local rules around the country requiring a mandatory "courtesy paper copy." Stupid. But, then, judges are still in the 19th century when it comes to record management, notwithstanding what the rest of the world is doing.
It's so easy to be tripped up by the local rules in the various federal courts. Hey, at least they accept e-mailed copies in AZ.

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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Tue Sep 12, 2017 10:43 pm

Docket Update:
09/11/2017 -- 231 -- [Protect Democracy Project Amicus Brief re: Appointment of Special Prosecutor] *MOTION to File Supplemental Amicus Brief in Support of Appointment of a Private Attorney to Prosecute Defendant's Criminal Contempt as to attorney Jean-Jacques Cabou by Protect Democracy Project Incorporated as to Joseph M Arpaio. (Attachments: # 1 Motion for Leave to File Supplemental Brief of Amici Curiae in Support of Appointment of Private Attorney to Prosecute Defendant's Criminal Contempt, # 2 Proposed Order)(Cabou, Jean-Jacques) *Modified text for clarification on 9/12/2017 (ATD). (Entered: 09/11/2017)

09/12/2017 – 232-- RESPONSE to [Amici Motions] by Joseph M Arpaio re: 229 MOTION to File Amicus Brief, 223 MOTION for Leave to File Amicus Brief, 231 MOTION to File Amicus Brief as to attorney Jean-Jacques Cabou, 228 MOTION to File Amicus Brief as to attorney Jean-Jacques Cabou, 227 MOTION to File Amicus Brief Defendants Response to Motions for Leave or in the Alternative Motion to Strike. (Wilenchik, Dennis) (Entered: 09/12/2017)
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Re: Arpaio (et al.) criminal contempt case

Post by Fortinbras » Wed Sep 13, 2017 12:34 am

These pleadings are being filed in FEDERAL court, aiming to prosecute Arpaio, either for a crime he has already been pardoned for or maybe for a different federal crime that might either be covered by the pardon already given or else one that Trump could issue a new pardon for. So, in my arrogant opinion, a waste of a paper and time.

However, encouraging the State A-G to have Arpaio prosecuted under STATE law for a crime in the STATE Code might work. The US President can pardon for only federal, not state, crimes.

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Re: Arpaio (et al.) criminal contempt case

Post by Sterngard Friegen » Wed Sep 13, 2017 1:39 am

Fortinbras wrote:These pleadings are being filed in FEDERAL court, aiming to prosecute Arpaio, either for a crime he has already been pardoned for or maybe for a different federal crime that might either be covered by the pardon already given or else one that Trump could issue a new pardon for. So, in my arrogant opinion, a waste of a paper and time.

However, encouraging the State A-G to have Arpaio prosecuted under STATE law for a crime in the STATE Code might work. The US President can pardon for only federal, not state, crimes.
The Protect Democracy (et al.) Amicus Brief essentially seeks to have a private prosecutor appointed to contest Arpaio's motion to vacate the conviction since the DOJ does not oppose vacatur. Because that's the "prosecution conduct" for which a private prosecutor is sought, I don't think it's a waste of paper and time. To the contrary, I think it is essential so that the issue may be properly adjudicated and I am also of the opinion that the brief (motion) is well taken.

Will the court agree? I have no idea.

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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Wed Sep 13, 2017 2:30 am

Sterngard Friegen wrote:If Arpaio had been held in contempt by a judge based on the inherent judicial power, then I agree the conviction would have created separation of powers issues. But he was convicted of a misdemeanor based on an Act of Congress for conduct relating to a court. In my view that's a crime against the United States subject to the pardon power.

The more difficult question is whether the conviction should be vacated. I hope the answer to that question is "no."
I think that the amici have made some valid arguments. I don't think that ALL of the arguments are great, but think that some are. I haven't had time to dig into the cases in detail but ...

I think there's something to the argument that ...
The President’s pardon eviscerates this Court’s enforcement power in the Melendres litigation by endorsing Arpaio’s refusal to comply with federal court orders. Not only does the pardon purport to eliminate Arpaio’s criminal conviction, but it also immunizes him for any future violations of orders entered in Melendres (including orders that have not even been entered yet).

The text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again, resume his violation of orders currently in place in Melendres—or future orders in Melendres that have not yet been entered—and escape criminal liability for future contempt.3 This scenario is a very real possibility: Immediately after receiving the pardon, Arpaio refused to rule out the possibility of running for office again.4 The pardon therefore purports to establish prospective immunity for Arpaio against all criminal liability no matter how many times or how blatantly he flouts orders issued in Melendres. Such a scenario would eviscerate the power of this Court to discharge its constitutional duty to enforce constitutional protections in the Melendres litigation. (Ma
MacArthur Justice Center Proposed Amicus Brief at 4-5. Authority is cited for proposition that can't make prospective pardons for potential future crimes; which this pardon DOES do ....)
I wonder whether this could go like the Muslim Ban, i.e., "Sorry -- way too broad." ... So Trump tries again - then it gets addressed again in more narrow form ....

I think there's something to the argument that ...
Applying the same principles, the Supreme Court has been careful not to allow use of the Presidential pardon power in a way that treads on constitutional rights. In the only other case that Amici have found where a Presidential pardon infringed upon the Bill of Rights, the Supreme Court circumscribed application of the Presidential pardon power. * * *
(Redish et al Proposed Amici Brief at 5 (with discussion thereafter.)
I think there's something to the argument (which most (all?) of the briefs make in one form or another) that ...
The Due Process Clause limits plenary powers conferred on the President in the body of the Constitution, just as the clause limits the powers of the Congress.
(Redish et al Proposed Amici Brief at 5 (and discussion prior)).
And I think there's something to the argument ... In the Perkins Coie/Protect our Democracy brief (at 9-11) about the difference -- recognized in Grossman -- between pardon for a contempt order issued in context of violating a public interest and a pardon for contempt of an order protecting a private interest .... and that the pardon power was NEVER be so broad as to interfere with the rights of private parties (as are involved here w/ the Melendres plaintiffs).

This issue (including an "original intent" discussion re: same) is the primary focus of the Chemerinsky et al Brief.

~~
And, again, I haven't read all the cases cited. But I plan to do so because, while I was exceedingly skeptical when I first heard the issues being discussed, I think that .. there's some potentially pretty strong arguments being made here. At least worth considering by the Court(s).
“Words are sacred. They deserve respect. If you get the right ones, in the right order, you can nudge the world a little.”― Tom Stoppard
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Tesibria
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Re: Arpaio (et al.) criminal contempt case

Post by Tesibria » Wed Sep 13, 2017 3:04 am

Sterngard Friegen wrote:
Fortinbras wrote:These pleadings are being filed in FEDERAL court, aiming to prosecute Arpaio, either for a crime he has already been pardoned for or maybe for a different federal crime that might either be covered by the pardon already given or else one that Trump could issue a new pardon for. So, in my arrogant opinion, a waste of a paper and time.

However, encouraging the State A-G to have Arpaio prosecuted under STATE law for a crime in the STATE Code might work. The US President can pardon for only federal, not state, crimes.
The Protect Democracy (et al.) Amicus Brief essentially seeks to have a private prosecutor appointed to contest Arpaio's motion to vacate the conviction since the DOJ does not oppose vacatur. Because that's the "prosecution conduct" for which a private prosecutor is sought, I don't think it's a waste of paper and time. To the contrary, I think it is essential so that the issue may be properly adjudicated and I am also of the opinion that the brief (motion) is well taken.

Will the court agree? I have no idea.
I agree with you Stern.
“Words are sacred. They deserve respect. If you get the right ones, in the right order, you can nudge the world a little.”― Tom Stoppard
WYE: Arpaio-Melendres-Seattle Operation Timeline | Sectec Astronomy: Dennis Montgomery Timeline

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