ETA: A few people argue the pardon is unconstitutional given the nature of the charges, in place to enforce a court judgment regarding violation of constitutional rights. One thing that eventually came to mind was that he is out of office. This alone makes it questionable to me that a criminal punishment is of fundamental importance to this extent. Still, though the phrasing of "unconstitutional" doesn't convince me, I understand the overall message that is being sent. There is a certain constitutional duty that is being violated here; it isn't just a horrible pardon.
Arpaio was found guilty of criminal contempt for breaking a court order regarding a finding of racial profiling. In a tweet, Arpaio blamed Obama holdovers. The court order was handed down by a Bush43 judge while a Clinton appointee later handed down the contempt conviction. A 1920s Supreme Court opinion said a pardon there was allowed. But, the question itself underlines the court, not Obama, was ultimately the party behind the contempt.* In fact, a rather dubious argument (cited here) is made that in this special case involving enforcement of a court order to protect constitutional rights, a pardon isn't even allowed.
[The argument that due process, the Fifth Amendment, is an amendment to the pardon power seems off to me -- I think due process was generally accepted to exist anyhow. Plus, the importance of court process to enforce rights goes to the inherent power to contempt arising from Art. III alone. Plus, various crimes are in place to protect constitutional rights. Why is court process here uniquely important? Finally, it is unclear to me that other means -- such as civil contempt -- cannot be used. Plus, yes, there already is an exception for impeachment. Why assume more?]
He pardoned the guy though. Republicans need to do more than talk when he does things like this. They have to do actions to underline that a certain level of dick-ness will have real consequences. A Lawfare blog analysis noted: "Notably missing from the White House statement was the reason Mr. Trump gave at his political rally in Phoenix. He indicated then that Arpaio was “convicted for doing his job.” You basically got this in the press release released as well, if you did a minimal amount of reading between the lines regarding the praise of how he "continued his life's work of protecting the public from the scourges of crime and illegal immigration." Yup. Extra level of pissed off.
I shall repeat: I don't think the guy was going to be put in jail for six months, particularly now that he's out of office. So, the pardon was a full-fledged "I approve this message." F rule of law. The pardon as a raw matter of power is allowed -- the argument above that it is not allowed is you know not likely to be made (e.g., the judge can just sentence him anyway, arguing that the pardon is illegitimate). He will retain the pardon. And, though I don't necessary think it's a statement of guilt [even here Trump in effect is saying he was a victim of injustice; in another case, that might actually be true], the contempt isn't taken off the books. It can be raised in a civil suit.
The fact that the pardon is not unconstitutional is not in itself conclusive. Government officials repeatedly have the power to do something without it being the right thing to do. A horrible war comes to mind. And, the reason why this is horrible has constitutional implications: it disrespects court judgments, furthers racism and even the slipshod way it was given (without going through normal processes, even waiting for the sentence) is problematic. Courts have every right now to not give him the benefit of the doubt regarding respecting court orders. Plus, it can still be an abuse of office. A pardon that arises from a bribe can be grounds for impeachment for the bribery. Like speech being used for criminal acts, this is sort of "pardon plus."
Trump is the poison that keeps on giving. This was after he finally got around to putting in place the trans ban in the military. The courts will now get involved, but like DADT, Congress has every right to step in. After all, even conservatives like Sen. Hatch opposed the move, right?
---
* As noted in the last link related to this story, the prosecution was carried out by the Justice Department. But, the court asked the U.S. attorney office to file criminal charges. The court has civil powers of contempt, but has to rely on the executive for criminal charges. So, that what was meant.
The article, which I saw while writing this, discusses how Trump wanted to stop the prosecution in mid-stream, but Sessions said it would be in bad form. But, Trump was going to pardon if he was convicted -- so heads you win, tails justice loses. Trump's individual involvement in an ongoing prosecution to help a pal underlines his disrespect of the rule of law.
And More: One thing that comes up is the assumption a pardon is an admission of guilt. I don't think so -- the current law is that a pardon is a choice that it is necessary for the public good, not merely an act of grace. Still, his conviction for now was not tossed. This often happens, but a hearing has been scheduled to determine if it should be here.
Racial profiling, ignoring sex crimes, and birtherism: Arpaio’s legacyArpaio is a Trump role model. The idea Trump would pardon him -- months before he even was sentenced -- still seemed outrageious. Yes, he tossed around the idea at a rally in Arizona, but he often is hot air. The top punishment would be six months, but the guy is out of office and in his mid-80s. Would he even get any prison time? At least wait .... plus, there was Hurricane Harvey in Texas.
The sheriff Trump just pardoned has done severe damage to Arizona, and to the country.
Arpaio was found guilty of criminal contempt for breaking a court order regarding a finding of racial profiling. In a tweet, Arpaio blamed Obama holdovers. The court order was handed down by a Bush43 judge while a Clinton appointee later handed down the contempt conviction. A 1920s Supreme Court opinion said a pardon there was allowed. But, the question itself underlines the court, not Obama, was ultimately the party behind the contempt.* In fact, a rather dubious argument (cited here) is made that in this special case involving enforcement of a court order to protect constitutional rights, a pardon isn't even allowed.
[The argument that due process, the Fifth Amendment, is an amendment to the pardon power seems off to me -- I think due process was generally accepted to exist anyhow. Plus, the importance of court process to enforce rights goes to the inherent power to contempt arising from Art. III alone. Plus, various crimes are in place to protect constitutional rights. Why is court process here uniquely important? Finally, it is unclear to me that other means -- such as civil contempt -- cannot be used. Plus, yes, there already is an exception for impeachment. Why assume more?]
He pardoned the guy though. Republicans need to do more than talk when he does things like this. They have to do actions to underline that a certain level of dick-ness will have real consequences. A Lawfare blog analysis noted: "Notably missing from the White House statement was the reason Mr. Trump gave at his political rally in Phoenix. He indicated then that Arpaio was “convicted for doing his job.” You basically got this in the press release released as well, if you did a minimal amount of reading between the lines regarding the praise of how he "continued his life's work of protecting the public from the scourges of crime and illegal immigration." Yup. Extra level of pissed off.
I shall repeat: I don't think the guy was going to be put in jail for six months, particularly now that he's out of office. So, the pardon was a full-fledged "I approve this message." F rule of law. The pardon as a raw matter of power is allowed -- the argument above that it is not allowed is you know not likely to be made (e.g., the judge can just sentence him anyway, arguing that the pardon is illegitimate). He will retain the pardon. And, though I don't necessary think it's a statement of guilt [even here Trump in effect is saying he was a victim of injustice; in another case, that might actually be true], the contempt isn't taken off the books. It can be raised in a civil suit.
The fact that the pardon is not unconstitutional is not in itself conclusive. Government officials repeatedly have the power to do something without it being the right thing to do. A horrible war comes to mind. And, the reason why this is horrible has constitutional implications: it disrespects court judgments, furthers racism and even the slipshod way it was given (without going through normal processes, even waiting for the sentence) is problematic. Courts have every right now to not give him the benefit of the doubt regarding respecting court orders. Plus, it can still be an abuse of office. A pardon that arises from a bribe can be grounds for impeachment for the bribery. Like speech being used for criminal acts, this is sort of "pardon plus."
Trump is the poison that keeps on giving. This was after he finally got around to putting in place the trans ban in the military. The courts will now get involved, but like DADT, Congress has every right to step in. After all, even conservatives like Sen. Hatch opposed the move, right?
---
* As noted in the last link related to this story, the prosecution was carried out by the Justice Department. But, the court asked the U.S. attorney office to file criminal charges. The court has civil powers of contempt, but has to rely on the executive for criminal charges. So, that what was meant.
The article, which I saw while writing this, discusses how Trump wanted to stop the prosecution in mid-stream, but Sessions said it would be in bad form. But, Trump was going to pardon if he was convicted -- so heads you win, tails justice loses. Trump's individual involvement in an ongoing prosecution to help a pal underlines his disrespect of the rule of law.
And More: One thing that comes up is the assumption a pardon is an admission of guilt. I don't think so -- the current law is that a pardon is a choice that it is necessary for the public good, not merely an act of grace. Still, his conviction for now was not tossed. This often happens, but a hearing has been scheduled to determine if it should be here.
No comments:
Post a Comment
Thanks for your .02!