In a world where the best legal minds held seats on the US Supreme Court, Erwin Chemerinsky would certainly be one of the nine justices. Instead, he serves as Dean of the UC Berkeley Law School. But we have the privilege of reading his thoughts on the Arpaio pardon in his amicus brief filed before Judge Bolton.
He was part of a team that submitted a short, brilliant brief examining the basis for the pardon power in the US Constitution. The entire brief is only 13 pages, double spaced, and I would encourage you to read the entire Chemerinsky Brief here.
I believe he argues correctly that judicial contempt power is beyond the scope of the pardon power. The brief outlines the constitutional basis of the power, and why the pardon does not extend to the contempt ruling.
But the most powerful point is that the Constitution requires the courts to provide a remedy when a public official takes away the civil liberties of a citizen. As the conclusion explains:
Few Presidents have questioned their duty to enforce judicial decrees affecting private rights. We can reflect on several of our nation’s proudest moments when Presidents have stepped in to support the federal courts. In 1957, President Eisenhower ordered the military and National Guard to end Arkansas governor Faubus’s resistance to school segregation. In 1962, President Kennedy sent troops and U.S. Marshals to escort James Meredith into the University of Mississippi.
An historic instance of law defiance by a sheriff repays study in this context. In
1906, Ed Johnson, an African-American, was condemned to death in Chattanooga,
Tennessee. Supreme Court Justice Harlan granted a stay of execution pending federal review of the case, and remanded Johnson to Sheriff Shipp’s custody. Shipp conspired with others to allow a mob to take Johnson from the jail and lynch him. President Theodore Roosevelt expressed outrage at this defiance of federal court authority. Shipp was prosecuted for and convicted of contempt of the Supreme Court – the only “trial” ever held before that Court. He was sentenced to imprisonment. United States v. Shipp, 203 U.S. 563 (1906), 214 U.S. 386 (1909); see Mark Curriden, Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism (1999).
No President till now has proclaimed that a public official who violated the Constitution and flouted court orders was “doing his job.” The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787. By that time, the English people had rejected what Madison termed the “impious doctrine of the Old World that people were made for Kings and not Kings for people.” Federalist No. 45
I have no illusions that this is an uphill battle. But we have all been taken in by the unthinking drivel by the media that the pardon power is unlimited. It is not, and it was not intended to be. The Arpaio pardon was not simply wrong; it was illegal. If there are no limits on pardons, there are no limits on offenses that can be committed by law enforcement officers. If law enforcement officers can commit any offense and deprive a person of any liberty, there is no democracy.
Don’t give up this fight.