Wednesday, August 30, 2017

Meanwhile, back at the bench...

This, by the way, is interesting:

U.S. District Court Judge Susan Bolton canceled former Sheriff Joe Arpaio's upcoming sentencing hearing for his criminal contempt-of-court conviction, telling attorneys not to file replies to motions that were pending before his recent presidential pardon.

However, Bolton on Tuesday stopped short of throwing out the conviction based solely on Arpaio's request. Instead she ordered Arpaio and the U.S. Department of Justice, which is prosecuting the case, to file briefs on why she should or shouldn't grant Arpaio's request.

Arpaio's attorneys asked Bolton on Monday to vacate Arpaio's conviction in light of President Donald Trump's Friday pardon.

Bolton has scheduled oral arguments on the matter for Oct. 4, the day before Arpaio was supposed to be sentenced.

There is case law that says a pardon implies an admission of guilt, and that will have to be argued in open court.

I'm not interested in the question of admitting guilt, although Arpaio might be.  I'm interested in the question of the validity of the pardon, which may be the legal issue the judge is interested in:

Goldman told The Arizona Republic Arpaio will appeal if the judge does not vacate all decisions in the case.

“We don’t know if the court will,” he said. "And if they don’t, we’ll be appealing, but hopefully this will just put this to rest.” 

I've seen judges raise legal issues counsel had not briefed, argued, or considered.  It strikes me the court is not anxious to treat this the way we treated bankruptcy stays back when I was a law clerk.  Bankruptcy filing immediately suspends all civil actions in which the bankrupt party is involved, as the interests of that party come under the jurisdiction of the bankruptcy judge.  This quickly went from "What the hell?", because nobody had ever heard of it, to "bankruptcy" being all you needed to tell the clerk (never mind the judge).

It's interesting the court is not satisfied that it has to dismiss this action altogether.  It will be even more interesting if the court has something in mind.  Arpaio may not end up happy that his counsel wanted to fight this further.

Other people are wondering about this pardon, too:

There will be few if any leaks from the Supreme Court. But one must wonder what messages the justices are getting from Trump’s extraordinary pardon. Though its major import is Trump’s official endorsement of racist discrimination in law enforcement, a flagrant contempt for judges and courts is the subtext. The issue in the Arpaio case was the very integrity of the federal judiciary. He was not convicted of an ordinary crime, but of deliberately disobeying a federal court order and lying about that; but beyond that, during the litigation that led to his conviction for criminal contempt, he hired a private detective to investigate the wife of a federal judge hearing a case against his office. Any judge can understand the threat posed by law enforcement personnel who seek to strike back at judges and their families, perhaps for purposes of blackmail or revenge—and the deep arrogance of a president who regards such behavior as praiseworthy.

And there's this, noted at the Washington Post:

Protect Democracy, an activist group seeking to thwart Trump’s violations of legal norms, and a group of lawyers have sent a letter to Raymond N. Hulser and John Dixon Keller of the Public Integrity Section, Criminal Division of the Justice Department, arguing that the pardon goes beyond constitutional limits. In their letter obtained by Right Turn, they argue:

“While the Constitution’s pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.

“Similarly, issuance of a pardon that violates the Fifth Amendment’s Due Process Clause is also suspect. Under the Due Process Clause, no one in the United States (citizen or otherwise) may ‘be deprived of life, liberty, or property, without due process of law.’ But for due process and judicial review to function, courts must be able to restrain government officials.

“Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.”

What is Judge Bolton up to with this hearing?

Bassin notes, “Judge Bolton may want to see how the honorable lawyers of DOJ’s public integrity section respond personally in open court — themselves as officers of the bar who’ve taken an oath to uphold the Constitution — to the blatant abuse of power by their boss.” He adds, “After all, these are people who’ve dedicated their lives and careers to ensuring our public officials act with integrity and Joe Arpaio and now the President of the United States have spit in the face of that.” Bolton’s hearing will venture into uncharted territory, a voyage necessitated by Trump’s utter disregard for the rule of law and his constitutional obligations to enforce the Constitution and laws of the United States. 
There may be some squirming in court, something Federal judges are especially good at producing.  As The Atlantic asks, what will the Supremes make of this, because Arpaio's lawyer is clearly intent on going there if he doesn't get everything he wants.

Which may be a case of be careful what you ask for.....

Stay Tuned.

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