Presidential pardons and the judicial system: What you need to know

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TED SIMONS: PRESIDENT TRUMP’S PARDON OF JOE ARPAIO CARRIES WITH IT A NUMBER OF LEGAL ISSUES, INCLUDING THE PRESIDENT’S RESPECT, OR LACK THEREOF, FOR THE COUNTRY’S JUDICIAL SYSTEM. JOINING US NOW, PAUL CHARLTON, A FORMER U-S ATTORNEY FOR ARIZONA AND A PARTNER IN STEPTOE AND JOHNSON, AND STEPHEN MONTOYA FROM THE LAW FIRM MONTOYA AND PASTOR. PAUL, WHAT EXACTLY IS JOE ARPAIO PARDONED FROM?

PAUL CHARLTON: HE’S PARDONED FOR THE ACTS FOR WHICH HE WAS FOUND GUILTY, WHICH IS TO SAY INTENTIONALLY DISREGARDING THE ORDER OF JUDGE MURRAY SNOW, THE ORDER TO STOP SYSTEMATICALLY STOPPING LATINOS, TO STOP VIOLATING THE CIVIL RIGHTS OF AMERICANS. HE WAS FOUND GUILTY OF INTENTIONALLY VIOLATING THAT ORDER, FOUND GUILTY OF A MISDEMEANOR, HE’S BEEN PARDONED FOR THAT.

TED SIMONS: THE DIFFERENCE BETWEEN A PARDON AND COMMUTATION.

STEPHEN MONTOYA: A PARDON COMPLETELY EXONERATES THE UNDERLYING CRIMINAL CONVICTION. A COMMUTATION REDUCES THE PUNISHMENT RESULTING FROM THE CRIMINAL CONVICTION.

TED SIMONS: AND WE NEVER HAD A CHANCE FOR THAT BECAUSE ARPAIO WAS NEVER SENTENCED.
STEPHEN MONTOYA: THAT'S GOING TO BE A VERY PROBLEMATIC ISSUE IN THIS CASE AS IT PROGRESSES BECAUSE IT'S NOT DONE. MISTER ARPAIO IS ARGUING THAT JUDGE BOLTON HAS TO VACATE HER JUDGMENT HOLDING HIM IN CRIMINAL CONTEMPT AND HE’S CONTENDING THAT BECAUSE THE JUDICIAL PROCESS HAS NOT COMPLETED, HE HASN’T ACTUALLY BEEN SENTENCED, A FINAL JUDGMENT HASN'T BEEN ISSUED FROM WHICH HE CAN APPEAL, THAT IN FACT, NOT ALLOWING THAT TO STAND IN ITS UNFINISHED STATE IS CONTRARY TO THE PARDON AND CONSEQUENTLY THE UNDERLYING CONVICTION SHOULD BE VACATED BY THE FEDERAL COURT.

TED SIMONS: WITH THAT IN MIND, WAS IT A SMART MOVE, A FORTUITOUS MOVE TO BE PARDONED BEFORE THE SENTENCING?

PAUL CHARLTON: IT MAY BE TACTICALLY, BUT AT THE END OF THE DAY, IT DOESN’T MATTER. HISTORY IS REPLETE WITH INDIVIDUALS GETTING PARDONED EVEN BEFORE THERE’S A TRIAL. THIS IS A PARDON, HE'S FORGIVEN FOR HIS WRONGS. THERE IS NO CONVICTION.

TED SIMONS: HOW UNUSUAL THAT ARPAIO NEVER FORMALLY APPLIED FOR A PARDON.

PAUL CHARLTON: IT IS UNUSUAL, AND I WOULD ARGUE, PERHAPS AN ABUSE OF DISCRETION, FOR A PRESIDENT SO CIRCUMVENT WHAT IS THE NORMAL PROCESS, AND THE TYPICAL PROCESS IS THAT YOU APPEAL TO THE DEPARTMENT OF JUSTICE AND A PARDON ATTORNEY. THERE EXPERIENCED ATTORNEYS REVIEW THE APPLICATION AND GIVE A RECOMMENDATION TO THE PRESIDENT. THAT DIDN'T HAPPEN HERE. HERE THE PRESIDENT MADE A DECISION ON HIS OWN WITHOUT CONSULTING THE DEPARTMENT OF JUSTICE.

STEPHEN MONTOYA: IT MIGHT HAVE BEEN CLEVER, AS YOU SUGGEST, FOR PRESIDENT TRUMP TO PARDON NOW BECAUSE NOW SHERIFF ARPAIO HAS A REAL ARGUMENT THAT THE UNDERLYING CRIMINAL CONVICTION IN THE FORM OF JUDGE BOLTON'S ORDER SHOULD BE VACATED BECAUSE IT’S NOT FINAL. THAT WAS PRETTY SMART.

TED SIMONS: AND TO THAT POINTWE HAVE ONE OF ARPAIO’S ATTORNEYS HERE TALKING ABOUT HOW THE COURT HAS TO DISMISS THE ENTIRE CASE.

VIDEO: SOMETIMES PARDONS HAPPEN A LONG TIME AFTER THE CONVICTION AND THE APPEALS ARE OPEN AND THE CONVICTION IS FINAL. IN THIS CASE, THE PARDON WAS ISSUED BEFORE IT WAS ALL OVER, BEFORE THERE WAS AN APPEAL. THE LAW SAYS IT'S AS IF THE CONVICTION NEVER HAPPENED. THE WHOLE THING GETS UNDONE. THAT'S ONLY FAIR BECAUSE OTHERWISE WE WOULD HAVE HAD THE RIGHT TO APPEAL, ANDWE WOULD HAVE ARGUED THAT THE SHERIFF DESERVED A TRIAL BY JURY AND THAT BECAUSE HE DID NOT GET A TRIAL BY JURY, THE CONVICTION WAS WRONGFUL. SO WHAT HAPPENS NOW IS WE’RE NEVER GOING TO GET TO DO THAT BECAUSE HE’S BEEN PARDONED SO THEREFORE THE COURT HAS TO DISMISS THE ENTIRE CASE.

TED SIMONS: DO YOU THINK THE COURT HAS TO DISMISS THE ENTIRE CASE?

PAUL CHARLTON: I THINK, BECAUSE OF THE PRESIDENT’S EXERCISE OF HIS AUTHORITY, THAT CASE HAS ESSENTIALLY GONE AWAY. AND WERE JOE ARPAIO’S LAWYERS NOT TO FILE SOME KIND OF A PLEADING BEFORE JUDGE BOLTON, JUDGE BOLTON HERSELF WOULD LIKELY HAVE VACATED THE SENTENCING.

STEPHEN MONTOYA: I DISAGREE. I DO DISAGREE. I THINK IT WOULD VIOLATE THE SEPARATION OF POWERS TO ALLOW A PRESIDENTIAL PARDON TO COERCE A FEDERAL COURT TO REVERSE ITS JUDGMENT. THE PRESIDENT HAS THE RIGHT TO PARDON IN MY OPINION, HOWEVER THE FEDERAL COURT ALSO HAS THE RIGHT TO CONVICT. THE PRESIDENT HAS THE RIGHT TO WASH AWAY THE CONSEQUENCES OF THE CONVICTION BUT NOT THE CONVICTION ITSELF ONCE IT'S ALREADY BEEN ENTERED.

TED SIMONS: IS THAT WHY THEY WANTED A JURY TRIAL?

STEPHEN MONTOYA: NO, THEY WANTED A JURY TRIAL THE SAME REASON WHY ANYONE SUPER POPULAR IN THE PLACE WHERE THEY WILL BE TRIED WANTS A JURY TRIAL. THEY WERE GOING TO APPEAL FOR JURY NULLIFICATION AND HOPE THAT ONE JUROR WOULD SAY, I THINK HE'S INNOCENT AND THEY’D WOULD GET A HUNG JURY.

PAUL CHARLTON: THIS CASE, THIS PROSECUTION HAD ITS BIRTH NOT WITH THE DEPARTMENT OF JUSTICE BUT WITH THE COURT SYSTEM. REMEMBER JUDGE SNOW SAID JUDGE BOLTON, I WANT YOU TO DECIDE WHETHER OR NOT THERE SHOULD BE A PROSECUTION HERE. JUDGE BOLTON, WHO TOLD THE DEPARTMENT OF JUSTICE, YOU SHOULD PROSECUTE THE CASE. HAD THE DEPARTMENT OF JUSTICE SAID NO, SHE COULD HAVE ASSIGNED IT TO ANY ATTORNEY IN TOWN. THERE IS NO SMALL AMOUNT OF DISRESPECT. THERE’S NO SMALL AMOUNT OF TRIVIALIZING OR MINIMIZING THE JUDICIARY AND ITS AUTHORITY WHEN YOU PARDON THIS KIND OF CONDUCT AND PARDON THE CONDUCT THE JUDGE AND JUDICIARY SAID SHOULD BE PUNISHED.

TED SIMONS: PARDONING AN INDIVIDUAL SWORN TO UPHOLD THE CONSTITUTION, HOW BIG OF A DEAL IS THAT?

PAUL CHARLTON: IT TAKES YOU OUT OF THE UNIVERSE OF PEOPLE WHO CAN BE CALLED GREAT AMERICANS. GREAT AMERICANS DO NOT IGNORE DISTRICT COURT ORDERS. GREAT AMERICANS DO NOT WILLFULLY IGNORE THOSE ORDERS AND GREAT AMERICANS DO NOT DISCRIMINATE AGAINST INDIVIDUALS BASED UPON THEIR RACE.

TED SIMONS: USUALLY PEOPLE THAT ARE PARDONED, THEY SHOW REMORSE. THEY ADMIT GUILT, ATONEMENT, RESPONSIBILITY. THIS NEVER HAPPENED IN THIS CASE.

STEPHEN MONTOYA: UNFORTUNATELY, IT DOESN'T HAPPEN IN A LOT OF CASES. CERTAINLY, PRESIDENT TRUMP ISN'T THE FIRST TO ABUSE THE PARDON POWER. A PRESIDENT I ADMIRED, BILL CLINTON, IN MY VIEW ABUSED IT PARDONING MARK RICH, WHO WAS CONVICTED IN ABSENTIA OF A VARIETY OF SERIOUS CRIMES, SO IT CAN BE ABUSED, BUT THE CONSTITUTION IS WRITTEN BROADLY IN REFERENCE TO THE PARDONING POWER, SO THE PRESIDENT HAS THE RIGHT TO DO IT. WHAT OFFENDS ME ABOUT THIS PARDON, IS THAT IT PUTS ELECTED OFFICIALS ABOVE THE LAW. IF I VIOLATE THE LAW, I’M A PRIVATE CITIZEN, I GO TO JAIL SIX MONTHS OR AM SUBJECT TO A FINE. IF AN ELECTED OFFICIAL, SOMONE SWORN TO UPHOLD THE LAW, VIOLATES THE LAW, SOMEHOW IS IMMUNE FROM PROSECUTION. AND THAT’S SOMETHING THAT SHOULD NEVER HAPPEN. AN ELECTED OFFICIAL WHO VIOLATES THE LAW SHOULD NEVER BE PARDONED AS A MATTER OF PRINCIPLE BECAUSE OUR ELECTED OFFICIALS NEED TO BE SUBJECT TO THE LAW MORE THAN PRIVATE CITIZENS WHO DON'T PUT OURSELVES FORWARD AS EXPONENTS OF THE LAW.

TED SIMONS: COULD HE BE SUBJECT TO CIVIL SUITS, AND IF HE HAS TO APPEAR AT ANY COURT AT ANY TIME, IS THIS AN ADMISSION OF GUILT AND THUS HE CAN'T TAKE THE FIFTH? HE'S ALREADY INCRIMINATED HIMSELF.

PAUL CHARLTON: HE'S ONLY BEEN PARDONED FOR FEDERAL OFFENSES. THE CONSTITUTION IS EXPLICIT IN THAT REGARD. HE MAY STILL HAVE EXPOSURE TO STATE CRIMES. I DOUBT IN THIS POLITICAL ENVIRONMENT WE'LL SEE THAT HAPPEN. CAN HE INVOKE THE FIFTH, I SUPPOSE A GOOD ATTORNEY WOULD FIND A WAY FOR HIM TO DO SO. HE CAN FACE CIVIL SUITS WHICH MEANS WE THE TAXPAYERS WILL BE ON THE HOOK AND HAVE BEEN FOR MANY OF THE WRONGS HE AND HIS DEPARTMENT COMMITTED.

TED SIMONS: THE PRESIDENT'S ACTIONS, DO THESE ACTIONS SIGNAL FUTURE PARDONS, MUELLER INVESTIGATION AND THE RUSSIAN PROBE?

PAUL CHARLTON: YES, IT'S A PRECURSOR TO WHAT WE SEE IN THE FUTURE.

STEPHEN MONTOYA: IT'S NOT ONLY POSSIBLE, PRESIDENT TRUMP HAS ACTUALLY TALKED ABOUT THAT. HE SAID THE PARDONING POWER IS ABSOLUTE. HE WAS SPEAKING TO THE RUSSIAN PROBE WHEN HE SAID THAT. THIS IS DEFINITELY A PRECURSOR TO THAT. THAT MAKES IT ESPECIALLY TROUBLING.

TED SIMONS: ALL RIGHT. WE HAVE TO STOP IT RIGHT THERE. GREAT CONVERSATION. THANK YOU SO MUCH FOR JOINING US.

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