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The Court Should Hold President Trump’s Pardon of Ex-Sheriff Joe Arpaio Unconstitutional, Legal Advocacy Groups Argue in Brief Filed in the U.S. District Court in Phoenix

“Our brief argues that the president cannot be allowed to weaponize the pardon power to circumvent the judiciary's ability to enforce and protect constitutional rights,” says Professor Martin Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University Pritzker School of Law.

PHOENIX, Ariz. - President Trump’s pardon of ex-Sheriff Joe Arpaio’s criminal contempt for disobeying a court order to stop violating people’s constitutional rights should be deemed invalid because it violates the Due Process Clause of the Fifth Amendment, Professor Martin Redish, Free Speech For People, and the Coalition to Preserve, Protect, and Defend argue in an amicus brief filed today in the U.S District Court in Phoenix.

In the case Melendres v. Arpaio, the Court held, among other things, that Arpaio’s office discriminated against Latino occupants of motor vehicles and stopped Latino drivers just to determine their immigration status. In 2011, the Court ordered the Sheriff’s Office to stop detaining people without reasonable suspicion of a crime. On July 31, 2017, after years of persistent violations of the Court’s injunction against illegally detaining people of Latino ancestry, the Court held Arpaio in criminal contempt, which carries a maximum sentence of six months in jail and a monetary fine.  On August 25, 2017, President Trump pardoned Arpaio.

The brief cites case law and precedent to explain why the U.S. Constitution’s otherwise broad pardon power is limited by the Due Process Clause of the Fifth Amendment, which guarantees that no person will be “deprived of life, liberty, or property, without due process of law.” As the brief explains, that guarantee requires that courts must be able to issue and enforce injunctions to stop constitutional violations by government officials. Pardoning officials for disobeying court orders to stop violating people’s constitutional rights undermines this constitutional right.

“President Trump can't give a free pass to government officials to violate people’s constitutional rights,” says Ron Fein, Legal Director of Free Speech For People. “The Constitution doesn’t permit this type of pardon, and the judge should reject it.”

The brief argues that “the power of contempt for violating injunctions requiring government officers to cease their unconstitutional actions — or risk fine, imprisonment or both — is a vital means by which the judiciary enforces constitutional rights.  If the President may employ his pardon power to relieve government officers of accountability and risk of penalty for defying injunctions imposed to enforce constitutional rights, that action will permanently impair the courts' authority and ability to protect those inalienable rights.  The result would be an executive branch freed from the judicial scrutiny required to assure compliance with the dictates of the Bill of Rights and other constitutional safeguards.”

“Our goal in submitting this brief is to assist the Court in resolving a case raising serious constitutional issues,” says Dennis Aftergut of the Coalition to Preserve, Protect, Defend. “To paraphrase Daniel Webster, the power to pardon defiance of constitutional rights is the power to destroy those rights.”

Free Speech For People is a national non-partisan non-profit organization founded on the day of the U.S. Supreme Court’s ruling in Citizens United v. FEC that works to defend our Constitution and reclaim our democracy.  Learn more at

The Coalition to Preserve, Protect, and Defend (“The Coalition”) is a California nonprofit dedicated to upholding the rule of law.  The Coalition was formed to participate in litigation supporting government accountability, just laws, open government, and to protect the public’s right to an independent and impartial judiciary


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