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Legally Speaking: Trump’s pardon makes Arpaio an innocent man

(AP Photo)

With the flourish of a pen, President Donald Trump handed former Maricopa County Sheriff Joe Arpaio a victory in his yearslong court battle on Friday.

Trump invoked his power under Article II, Section II of the U.S. Constitution and pardoned Arpaio, meaning his conviction for criminal contempt of court handed down by U.S. District Court Judge Susan Bolton has been erased.

The sentencing scheduled for October will be vacated and Arpaio will be deemed innocent under the law.

Legally speaking, how could Trump do this? Simple. Article II, Section II of the Constitution states:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

This power allows the sitting president to pardon a convicted person for federal crimes, not including impeachment.

Arpaio’s conviction for criminal contempt of court is within this power because it was not impeachment and it was a violation of a federal law.

The pardon power conferred upon Trump in the Constitution has been confirmed by the Supreme Court in the oft-cited case of Ex parte Garland wherein Justice Stephen J. Field wrote (emphasis mine):

The Constitution provides that the President “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” 

The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. 

This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. … A pardon reaches both the punishment prescribed for the offence and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence…if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

Trump was not the first to invoke this power and he will not be the last. If you don’t believe me, hop online and search for presidential pardons. Trump is far from alone.

Arpaio’s supporters were likely pleased to hear of the pardoning, while others will see it as wrong and unfair.

However, as I explain to my students, fair is not a word that exists in the judicial system.

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