So Trump has pardoned Arpaio: A Lawsplainer

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As you may have heard, Trump issued his first pardon of his presidency to former Maricopa County, Arizona Sheriff Joe Arpaio. Arpaio was recently convicted in a case involving contempt of a federal court’s order. What does this mean? Why did he do it? Is it legal? Allow me to lawsplain.

What is the presidential pardon power?

The presidential pardon power is granted by Article II, Section 2, Clause 1 of the Constitution, which says:

The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Thus, the presidential pardon power extends only to federal criminal acts, and does not and cannot be used to absolve a person of civil liability or immunize them from prosecution under state law.

But does a criminal contempt conviction qualify as an “offense against the United States?”

It turns out that it’s not entirely clear that a criminal contempt conviction actually qualifies as an “offense against the United States” in this context, since in Arpaio’s case the Government agreed to limit his potential imprisonment if convicted to six months or less, which obviated the need for a jury trial.

However, the U.S. Supreme Court in Ex Parte Grossman, 267 US 27 (1925) ruled that a conviction for criminal contempt of court and sentence of 1 year did qualify as an “offense against the United States,” and upheld President Coolidge’s pardon of a man who was criminally convicted for contempt of a federal court order prohibiting him from selling alcoholic beverages during the prohibition era.

Whether Ex Parte Grossman would have the same effect in the context of Joe Arpaio remains to be seen.

What does the pardon mean?

If it’s upheld by the courts, it means that Arpaio will not see the inside of a prison cell as a result of his conviction. However, the pardon will not absolve him of civil liability, and I would suspect that one or more victims of his contumacious conduct (that is: the brown people he illegally stopped in violation of the court’s injunction) will sue the pants off of him. At least I hope they do.

There is also the little problem that, according to SCOTUS, once Arpaio accepts the pardon, it is likely tantamount to an admission of guilt (although whether a court will construe it as such will depend on the exact wording of the pardon, which hasn’t been publicly released yet). Thus, Arpaio and his lawyers are likely now wrestling with whether to accept the pardon and how to deal with the legal consequences that will result.

Finally, let’s not diminish the fact that this pardon will have tremendous implications for the Arizona GOP in the 2018 elections and possibly beyond.

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