Back in the courtroom....

The Arpaio pardon is back in the news, but since this case hasn't gone to the Supreme Court I don't have a reliable source like SCOTUSBlog to get good information about it.  All I know for sure is that the contempt proceeding is part of a civil suit brought by private parties against Arpaio, and joined by the DOJ and the ACLU, among possibly others.

Which is a real problem for the DOJ now, and for Arpaio.  I haven't done the requisite legal research, but my internet browsing leaves me comfortable in saying the courts have recognized that a civil suit is not an "offense against the United States" and so, like a state criminal case, is not within the ambit of the Constitutional grant of pardon power to the President.

This, it finally occurs to me (I'm slow, but I get there) is why the federal judge in the case has asked for briefs on the question of continuing the lawsuit.  I'm not sure (as I'll explain below) the court even recognizes the legitimacy of a Presidential pardon for a contempt of court action, but I'm quite sure the court doesn't think a pardon reaches into a civil suit.  I thought the DOJ had stepped up and whiffed it magnificently, in a really grotesquely partisan, even hyper-partisan, fashion.  Now, however, I'm not so sure.  First, the reported language from the DOJ brief, and some context:

“The President’s decision to grant Defendant a ‘[f]ull and [u]nconditional [p]ardon [f]or [h]is [c]onviction’—and Defendant’s decision to accept it—ends this prosecution,” the DOJ said in a court filing Monday. “The presidential pardon removes any punitive consequences that would otherwise flow from Defendant’s non-final conviction and therefore renders the case moot.”

Prior to Trump’s pardon, Arpaio had been slated to receive his sentence for the criminal contempt conviction next month. A federal judge in July found Arpaio guilty of criminal contempt of court for violating court orders dating back to 2011 that barred discriminatory policing practices under his watch.

The court orders were the result of a civil lawsuit against Arpaio, brought initially by a motorist detained by his office who was later joined by the ACLU and other plaintiffs . The federal government had previously argued in favor of holding Arpaio in criminal contempt for violating a court’s order that he end his office’s practice of racially discriminatory traffic stops.

Trump last month pardoned Arpaio for the contempt conviction and for “any other offenses” that may arise from that case. Arpaio was an early Trump-booster during the presidential campaign and made appearances at Trump rallies.

The court has suspended the hearing on sentencing for the criminal contempt charge; but it's not clear from news reports whether the court has dismissed the criminal contempt charge or not.  That language from the DOJ leads me to believe they don't think that has happened yet, and they are addressing that issue.  Either that, or they are trying to conflate a civil suit with a criminal one ("prosecution" is a term that belongs to the criminal docket, as does "punitive consequences.")  That's where I thought they'd whiffed it, at first.  That's language designed to get this case under the Constitutional pardon language, but since it's not a criminal case, it's language that doesn't belong.  Well, unless the DOJ is addressing the criminal contempt charge; and even then I don't think the pardon applies, but it's a more arguable point.

It's impossible to tell with news reports that can't manage to distinguish criminal from civil proceedings, or understand that "criminal contempt" is not a criminal prosecution, just what the trial judge has in mind.  This may be the explanation, because even a hyper-partisan DOJ would understand that "Punitive consequences" that do not arise from an offense against the United States are not consequences the POTUS can pardon, and a civil suit is not an offense against the United States.  ("Punitive consequences" are not the aim of a civil suit, apart from punitive damages.  Civil suits seek reparation, not punishment.)

I think this is why the court wants a hearing:  not to decide to dismiss the civil suit, but to decide to honor, or reject, the pardon for criminal contempt.  Arpaio's lawyers have been screaming that the court exceeded its authority in the contempt proceedings by failing to give Arpaio proper notice of the judgment against him; the court wants to sidestep any complaint when it rules on the reach of the pardon.  I think it is settled law that Presidential pardons do not reach civil suits; I still contend it doesn't reach contempt citations (civil or criminal) either.  Arpaio's lawyers have not impressed me with their acumen, so this may be a surprise to them; or it may not.  I have no doubt it's a surprise to Arpaio, who seems to think he's free of all legal concerns now.

I'd still rather the court continue with the contempt proceeding, and I'm still not convinced the court won't do that.  The language from the DOJ brief seems to indicate they understand, if the press and Arpaio and Trump don't, what the issue before the court is.  I could be over-reading this badly; it's hard to tell because news reports are so ignorant about what's going on, and it's not before the Supreme Court so Nina Totenberg can explain it clearly (and accurately).  But from a legal standpoint, this is the explanation that explains the court's actions after the pardon, and the response of the DOJ.

Because otherwise the court is being weird and the DOJ has lost its mind in a blind frenzy to defend the naked emperor at all costs; and I don't think the corrupting influence of Trump has reached that far; not yet, anyway.