Donald Trump‘s controversial pardon of Arizona Sheriff Joe Arpaio may not go through due to a US district court judge.
Judge Susan Bolton of the US District Court handling Mr Arpaio’s case has cancelled a sentencing hearing for the former Maricopa County sheriff but stopped short of throwing out his conviction.
Instead, Ms Bolton said that because a presidential pardon carries an implication of guilt she wants both Mr Arpaio’s lawyers and the US Department of Justice to submit briefs on why she should or should not vacate Mr Arpaio’s conviction.
She has scheduled oral arguments for 4 October on the matter and will make a decision at that point.
A civil suit was originally brought by the American Civil Liberties Union (ACLU) for Mr Arpaio’s alleged racial profiling for detaining Arizonans who looked to be of Mexican or Latin American descent under suspicion of being in the US illegally.
“The judge trying that case not only found that Arpaio’s policies constituted racial profiling, he also found Arpaio to be in civil contempt of court and referred him to [Ms Bolton] for the criminal contempt,” USA Today reported.
Ms Bolton then asked the US Attorney in Arizona to try the case for Mr Arpaio’s allegedly disobeying the order to stop the racial profiling, but that office declined. That is when the US Department of Justice stepped in.
Washington DC-based lawyer Kimberly Curtis told The Independent that a presidential pardon does not necessarily “imply” guilt in the way Ms Bolton’s decision may suggest.
However, Mr Arpaio’s case is a little more complicated. Presidential pardons only cover federal crimes, so technically Mr Trump has not pardoned his racial profiling but the alleged contempt of court charge.
“The issue with [Mr] Arapio is he was actively appealing his conviction when he was pardoned. So there is an unknown question about which takes precedence- the pardon or the appeal,” Ms Curtis said.
Normally, with a presidential pardon the defendant waives the right to an appeal however, Mr Arpaio’s lawyer Mark Goldman has not indicated as yet whether his client will drop the appeal.
Ms Curtis said Mr Trump may have “jumped the gun” on pardoning Mr Arpaio before the appeal was dropped.
So, even with the pardon Mr Arpaio’s conviction is still on the record at this point. But, a presidential pardon is a ” “the most common way a convicted felon can regain full civil rights and only way they can regain their gun rights.”
Mr Trump said Mr Arpaio has been treated “unbelieveably unfairly.”
“He’s done a great job for the people of Arizona, he’s very strong on borders, very strong on illegal immigration, he is loved in Arizona,” Mr Trump said.
However, according to a recent poll the majority of Americans – around 60 per cent of respondents in a poll conducted by NBC News/SurveyMonkey – said it was “wrong” to pardon the former sheriff.
Additionally, around 64 per cent of the over 10,000 respondents also support the Deferred Action for Childhood Arrivals (DACA) programme, which allows people brought to the US illegally as children, so-called “Dreamers,” a repreive from deportation.
Donald Trump’s pardoning of Sheriff Joe Arpaio is an impeachable offence, say law professors
‘It is a direct attack on the constitutional powers of the judiciary…and threatens the rule of law’
The 85-year-old former Arizona sheriff was convicted of ignoring a court order warning him to stop racially profiling Latino immigrants.
Mr Trump was criticised after he provided him with a presidential pardon.
While the US Constitution gives the president the power to pardon whoever they like, legal experts say this case is problematic because it undermines the ability of the courts to stop state officials violating the constitutional rights of individuals.
The issue was raised in a New York Times article by Martin Redish, a professor of constitutional law at Northwestern University.
The legal reasoning rests on the fact that the president pardoning someone found guilty of ignoring a court order undermines the power of the courts and raises the worrying prospect of the executive nullifying the judiciary.
The most effective way for courts to prevent the state violating individual rights is by issuing injunctions. These instruct that the offence or planned offence must stop or else those responsible will face prosecution for ignoring the court order.
Without this threat, the injunction is largely meaningless. However, Donald Trump’s decision to pardon someone who was found guilty of ignoring a court order, raises the prospect that state officials could opt to ignore the courts in the belief the president will pardon them should they be convicted.