Arizonia Sheriff Joe Arpaio’s Lawyers have filed Trump’s Pardon of Arpaio and demanded that the Federal Court Vacate the Sheriff’s Conviction and dismiss the Prosecution with Prejudice.

A President’s Pardon Power is Confined, by the words of the Constitution, to Crimes against the United States. But Criminal Contempt of Court may be a different kind of Crime. Criminal Contempt only arises within the framework of Civil Law Cases and exists only to protect the Power of a Civil Court to enforce its will. Criminal Contempt of Court is like any other Crime, in most ways, but it is also, importantly, Different.  Because of the difference, it could be that a Conviction for Criminal Contempt of Court lies beyond the Power of a Presidential Pardon.     

Trump’s Pardon of Arpaio has to be Accepted by a U.S. District Judge, as proper Grounds for Dismissal of Arpaio’s Conviction, in order for the Case to go away. Arpaio’s Lawyers are telling the Judge that she must Dismiss the Case immediately, against the Sheriff, on the strength of the Pardon, but the assigned jurist, Judge Susan Bolton might not agree. There are perfectly arguable Legal and Constitutional reasons why she might not Dismiss part of the Case.

Judge Bolton has not yet Dismissed the Case, although she did Suspend further Proceedings regarding the Sentencing Hearing and Cancelled that Hearing, instead, she has Granted the Parties opposed to Dismissal the chance to be Heard and has Ordered a Hearing on Arpaio’s Motion for 10:00 AM local time on October 4th, 2017.  

Sheriff Arpaio and his Chief Deputy more or less declared a War of Insurrection against the Authority of the United States Courts, responding to most of their Court ordered Obligations by openly flouting the Orders and more or less declaring Independence from Federal Court Authority. They also messed with Evidence they had been Ordered to Safeguard, Hid Information they were ordered to Disclose and generally engaged in active Noncooperation with efforts to enforce the Federal Courts’ Civil Judgments against Arpaio’s Department.

The Plaintiffs in the Civil Rights Suit eventually charged the Sheriff with Civil Contempt of Court, the next to last Enforcement weapon in a Civil Case Judge’s holster. Up through the Civil Contempt stage, U.S. District Judge G. Murray Snow presided over the entire Civil Rights Class Action, had entered the Judgment and overseen the ensuing Enforcement Problems. Judge Snow conducted a Trial on the Civil Contempt and found the Defendants Guilty, also naming both the Sheriff and his Chief Deputy as Perjurers. Judge Snow then reached for a Civil Judge’s very last Enforcement Tool. He referred the Sheriff and others for Prosecution for Criminal Contempt of the Court. At this point, in accordance with the usual Practice, Judge Snow recused himself and a randomly selected Judge in the District was assigned to preside over the Criminal Contempt Phase of the Case.

The procedural history shows Sheriff Joe Arpaio thumbing his nose, in Public, at the Civil Authority of the U.S. District Court in Phoenix Arizona and the Ninth Circuit Court of Appeals. The history also shows that Criminal Contempt of Court does not arise, like other Crimes, from Offenses against the Government or the Public at Large. Criminal Contempt of Court arises only within the context of Civil Litigation, from Disobedience to Lawful Court Orders and Judgments in Civil Cases, and Constitutes an Offense against the Judiciary’s essential Power to Coerce Obedience with Judicial Decisions in Civil Cases. Without Universal Acknowledgment of this Ultimate Coercive Power, the Pronouncements of a Court could quickly become a Waste of Breath and one of our Independent Governmental Branches might eventually Fail altogether.

American Courts have long held that the right to Punish for Contempt was one Adopted from Long Precedent and essential to Judicial Efficiency. Taking Away or Overriding this kind of Power from Judges in Civil Cases is hardly different than Preventing a Congress from Legislating or a President from Executing the Laws. The Power of Criminal Contempt is so essential to the effective Existence of Civil Judicial Power, that allowing an Executive Act, like a Pardon, to Interfere, may Violate the Separation of Powers Doctrine.

We have, at hand, the Ingredients of a potential Constitutional Crisis. The Pardon Power of a President only extends to Crimes against the United States. Judge Susan Bolton could decide that, even if Criminal Contempt of the Court is a Crime, it is not a Crime, strictly speaking, against the United States, as meant in the Constitution, but instead Constitutes an Offense only against the Civil Enforcement Powers of the Judiciary.

Judge Bolton could decide that Joe Arpaio’s Contempt of Court Conviction is a matter requiring Judicial Supremacy, lest the very ability, of the Federal Court System, to Administer the Civil Laws of the Nation, become prey to the Dictates of an Independent and Coequal Branch of Government. She could find that Criminal Contempt of Court is the Inherent Prerogative of a Co-Equal and Independent Branch, to which the President’s Pardon Power does not Apply.

If Judge Bolton did that, Ruled Trump’s Arpaio Pardon to be a Nullity in the particular matter before her, the Ninth Circuit might Uphold it. The Ninth is, after all, the West Coast, wild and crazy, Federal Circuit Court of Appeals. The Ninth Circuit might see the Pardon as an Assault by the President on the very Institution of the Judiciary. After that, there might be Four Votes to get the Pardon a Supreme Court Hearing. After that it would be wise to note that Judges are usually eager to Protect their Ability to Enforce Judicial Decisions. Judges are prone to believe that Judicial Decisions and Orders ought to be Obeyed.

I am certain that the Judge her Clerks, are burning midnight oil to make sure they understand every possible nuance of this potential Constitutional Catastrophe. The Lawyers for other Parties interested in Enforcement of the Civil Judgment are likely doing the same.

After October 4th we will know more about whether Trump’s Pardon really gets Joe Arpaio of the Hook for his Blatant flaunting of the Authority of U.S. Courts.

And with an Appeal, what the Supreme Court does.











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