Could Joe Arpaio Break the Presidential Pardon?

[DonViejo]

His case is still alive. It could test the limits of pardon power—and not just for Trump.

By RICHARD PRIMUS October 04, 2017

Joe Arpaio is back. Today, a federal judge will hear arguments in the continuing case of United States v. Joseph M. Arpaio—the case in which President Donald Trump issued his first presidential pardon. To many people, it might be strange to realize the case is continuing at all. Normally, a pardon is the end of a criminal case, or an epilogue. But the controversial sheriff of Maricopa County, Arizona—convicted of criminal contempt of court—has decided to try to clear his name, asking a court to vacate his original conviction entirely. (Normally, a pardon protects the pardoned person from punishment, but leaves the fact of the conviction on the books.)

Arpaio might indeed get his record wiped clean. But in asking a court to vacate his conviction, Arpaio is inviting another possibility as well: that the court will decide his pardon was not valid in the first place. If that happens, the Arpaio pardon would mark a new development in the law: judicial willingness to limit the presidential pardon power itself.

For a long time, the conventional wisdom has been that a President could grant a pardon for any reason, and that a presidential pardon for a federal crime could not be challenged in court. But that view of the pardon power is not stated anywhere in the text of the Constitution. Article II, Section 2 says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It doesn’t say “…and any pardon the President grants is absolute and unreviewable.” Rather than being a rule stated in the Constitution, the assumption that presidential pardons can’t be overturned by courts is a matter of longstanding convention.

There are reasons why such a convention is attractive: A pardon is an act of mercy, and there is something dissonant about picking apart acts of mercy in the courtroom. But treating the pardon power as absolute also has downsides, because any absolute power can be exercised irresponsibly. The convention, therefore, is partly built on the judiciary’s confidence that Presidents exercise the pardon power responsibly—or at least that whatever abuses occur are within tolerable bounds.

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http://www.politico.com/magazine/story/2017/10/04/trump-arpaio-break-pardon-215676

[Wounded Bear]

1. If anything does happen, it will set precedent, for sure...

Now, how effective is precedent, given the disrespect these people have for the law?

[zipplewrath]

2. It would seem the court is in a strange place

Pardons usually indicate a willingness on the part of the convicted to accept the reality of their crimes. By pursuing having his record vacated, it would seem that he is refuting his guilt. The court could find itself deciding that the pardon hasn't been "accepted" by him. They definitely need to go forward with sentencing, in case the pardon is somehow vacated.