Editor’s Note. Note the author’s update at the end of the article.
The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
– U.S. Constitution, Article II, Section 2Why did President Donald Trump pardon Sheriff Joe Arpaio of Maricopa County, Arizona, late Friday night? The greatest weakness of conservatives is that we are poor at explaining. A President would be wise to always release a full explanation every time he issues a pardon.
Sheriff Joe announced that he will be explaining the case against him—”a political witch hunt by holdovers in the Obama Justice Department” this coming week. But first Arpaio wants to check with his attorneys in Arizona, he said. So we may never get much of an explanation.
As an attorney, I was honored to help senior attorney Larry Klayman of Freedom Watch represent some affected parties in the actual case in which Sheriff Joe Arpaio was found to be in contempt of court. We did not represent Arpaio there. It was a civil case brought by the ACLU, Melendres v. Arpaio. I also worked directly on Arpaio’s legal team, under Klayman, challenging President Barack Obama’s Executive Order granting amnesty to millions of illegal trespassers.
First, Arpaio was tried under a false interpretation of the law. Only statutes passed by Congress are “the supreme law of the land.” Executive Branch policy is not. Sheriff Arpaio was enforcing the laws as written by Congress. An Executive Branch policy to ignore the law has no legal effect whatsoever. Yet the courts have unlawfully restricted the States—especially Arizona—from enforcing Congressional statutes (the supreme law of the land) based on Executive Branch dereliction of duty (legally meaningless). So Arpaio was found guilty of enforcing the laws Congress passed in conflict with the Executive Branch not wanting to. (Yes, state police can often enforce certain federal laws.)
Specifically, Arpaio’s deputies only stopped people when there was probable cause, such as a traffic violation or other state-law crime. If someone was stopped by deputies for a legitimate reason, and if it also appeared that they were illegal aliens, the Sheriff’s office contacted ICE (Immigration and Customs Enforcement) to take over from there.
But the ACLU claimed—and Judge G. Murray Snow found—that if Arpaio held anyone one minute longer than necessary to process their violation of state law for the additional reason of enforcing immigration law (i.e., holding them for ICE), then the Maricopa County Sheriff’s Office violated their civil rights. Even if they were illegal aliens, Snow ruled, Arpaio detaining them to hand them over to ICE was illegal because only the federal government can do that. (And under Bush then Obama the federal government didn’t want to do it.)
One complaint was that someone might be held for investigation who is a U.S. citizen. So what? If my car looked like a car involved in a nearby hit-and-run accident, do you really think the police can’t stop me and hold me to see if I was involved in the hit-and-run? The police can hold a U.S. citizen on probable cause to investigate a possible crime.
And, of course, the ACLU claimed that Arpaio’s office “must have” decided based on racial appearance—for which there was not one shred of evidence. In fact, many of the actual deputies involved were Hispanic themselves.
Second, Arpaio oversaw a huge office. Arizona’s Maricopa County has four million residents, larger than 22 States if the County were a State. Arpaio admitted to the Court that implementation of changes in practices had been slow. Judge Snow unreasonably ignored the vast size of Arpaio’s office.
Third, the judge who found Arpaio in contempt of court violated governing law by not recusing himself, as analyzed by legal ethics expert Prof. Ronald Rotunda. Snow told his wife as early as 2011 that that he was going to use the Melendres case to remove Arpaio from office. Karen, Dale, and Scott Grissom encountered Cheri Snow in a Someburros restaurant in Tempe, Arizona. Cheri Snow and Karen Grissom were classmates as children and started catching up. Cheri Snow boasted that her husband was presiding over the trial of Sheriff Joe Arpaio, hated Arpaio, and would do whatever he could to “get rid of” Arpaio (remove him from office).Neither Snow nor his wife denied this, explained it, or apologized, while accusing Arpaio of having his attorney Tim Casey check into the controversy. Grissom (a stranger to Arpaio) warned Sheriff Joe in 2013. Casey tasked a private investigator with interviewing the Grissoms. The released transcripts are highly credible.
Fourth, Judge Snow’s brother-in-law is a partner in the law firm assisting the ACLU, Covington & Burling (where Eric Holder and Lanny Breuer are partners). Judge Snow ordered Maricopa County taxpayers to pay $4 million to Covington & Burling. Funneling millions of dollars of taxpayer funds to his brother-in-law’s law firm is a serious conflict of interest.
Fifth, Judge Snow made the case about himself—a conflict of interest. The Melendres case ended in a final order way back on October 2, 2013. The case was then completely changed. Snow changed it yet again radically on April 23, 2015, making it about a wild conspiracy theory and about Judge Snow’s own wife. Snow found Arpaio in contempt partly for checking into Grissom’s warning that Judge Snow was biased. But that made Snow’s own wife a necessary witness. A judge must recuse himself if a family member would be a witness before him or affected by the proceedings. Most defense attorneys would have felt obligated to call the wife as a witness.
Sixth, Arpaio was deputized for federal immigration law enforcement under section 287(g) of the Immigration and Naturalization Act (8 U.S. Code § 1357). Arpaio was acting pursuant to lawful authority. However, during the lawsuit, President Obama cancelled Maricopa County from the 287(g) program. Judge Snow ignored those details. Liberals were gunning for Arpaio.
Generally, the pardon power is a check and balance by the Executive Branch against out-of-control judges. A President can pardon someone trampled by the courts to check errors, excesses, and abuses by the Judicial Branch. The presidential power of a pardon is not a matter of compassion—not necessarily. A pardon clips the wings of judges who go too far.
The pardon power is unlimited, precisely because its purpose is to counter-balance the Judiciary. If it were merely about compassion, Congress could impose standards, even with judicial review. But the very purpose is to overrule the other branches. That is why the power is unrestrained.
The Judicial Branch has almost no limitations. Judges have proven as brazen and irresponsible as the other branches. Our Founders thought the Judiciary would be weak because it has no army to enforce its orders. Instead, the courts now hold almost absolute power by ordering people arrested.
Under the Constitution, judges hold office only “during good behavior”—not “for life.” Yet they have managed to fool the country into thinking that their own adherence to the law and governing rules can never be questioned. Most Presidents are afraid to rock the boat. Certainly, this President Trump is not shy about using the powers that our Founders intended Presidents to wield. The good guys, however, must learn how to explain better why they undertake these important actions.
Author’s Update. It should be noted for clarity that the conviction of Sheriff Joe Arpaio as a criminal contempt matter was entered by U.S. District Court Judge Susan Bolton. However, from the author’s monitoring of the case from 2015 on, the legal scenario was set up by Judge G. Murray Snow, who found Arpaio in contempt of court (of Snow’s orders). Judge Bolton’s role was limited to taking Snow’s legal framework and deciding that the contempt rose to the level of criminal as opposed to civil contempt of court. Bolton was wrong. But Snow set up the legal injustice against Arpaio before the case reached Bolton. The last step involved whether Arpaio’s actions were willful and intentional rather than negligent or unknowing. Both Snow and Bolton badly twisted the evidence, including by refusing to allow central witnesses to be heard and misrepresenting the testimony of those who did testify. Moreover, it would take a book to list all of the irregularities in this case.