President Trump used his pardon powers sparingly in his first year in office, but one he did issue remains intensely controversial, with some of his political opponents now asking a federal appeals court to rule it invalid.
The president’s August pardon of former Sheriff Joe Arpaio roiled the political debate, with congressional Democrats saying they feared an onslaught of pardons designed to let Trump allies off the hook.
That hasn’t happened, but the Arpaio pardon still rubs Trump opponents wrong.
Led by prominent left-wing law professor Erwin Chemerinsky, revered in the legal academy as a master of constitutional issues, the opponents asked the judges last month to reinstate Mr. Arpaio’s conviction for criminal contempt of court, saying the offense is beyond the power of any president to pardon.
They are also seeking to be allowed to argue their case to the appeals court in lieu of the Justice Department, which has defended the pardon and said a lower court should have also tossed the original conviction.
“No president until now has proclaimed that a public official who violated the Constitution and flouted court orders was ‘doing his job,” Mr. Chemerinsky and his cohorts said in their court filing. “The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787.”
Mr. Arpaio was convicted last summer by Judge Susan Bolton of criminal contempt of court, after the Clinton appointee found the former sheriff knowingly defied another judge’s order to halt a program that saw his deputies target Hispanic drivers for special enforcement.
Mr. Arpaio said the conviction was wrong because he should have gotten a jury trial, asked that Judge Bolton reverse it, and said he would appeal to the 9th U.S. Circuit Court of Appeals.
Before any of that could really take off, however, Mr. Trump issued a pardon.
Mr. Arpaio said because his conviction was never finalized, it should be struck from the record altogether. Anti-Trump and anti-Arpaio forces rushed to court saying not only should the conviction remain, but the judge should refuse to accept the pardon and go ahead with a sentence.
Judge Bolton took a middle ground, finding that the pardon was valid but refusing to vacate the conviction.
Mr. Arpaio appealed that decision to the 9th Circuit.
The Justice Department says it agrees with Mr. Arpaio that the conviction should be struck, and said it won’t even argue in the appeals court on behalf of Judge Bolton’s decision.
Mr. Chemerinsky and his cohorts have stepped in to request they be allowed to argue — and have said the appeals court should take a step back and undo the pardon itself.
Mark D. Goldman, one of Mr. Arpaio’s lawyers, said Mr. Chemerinsky’s attempt to force the case was “a sad commentary” on legal academia.
“It seems to me that Cherminsky’s time would be better spent helping the sick, hungry, homeless and destitute during this Christmas season,” Mr. Goldman said.
He questioned why Mr. Chemerinsky is singling out Mr. Arpaio, rather than going after other targets such as Judge Alex Kozinski, who sat on the 9th Circuit until his resignation last month in the wake of accusations of sexual harassment.
“Instead Cherminsky squanders his resources tilting at windmills for obvious political reasons. Shame!” Mr. Goldman said.
In addition to the Arpaio pardon, Mr. Trump used his clemency powers one other time in his first year in office, commuting the sentence of a kosher meat processing plant owner.
He’s the first president since President George H.W. Bush in the 1980s to use clemency powers his first year in office. Presidents Bill Clinton, George W. Bush and Barack Obama all waited until at least two years into their terms before using clemency.
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