There is nearly a joke waiting here—
Hundreds of Tunisians protested on Saturday in the streets of the capital against a widely contested new law that grants officials from the former regime involved in corruption amnesty from prosecution.
Tunisia’s parliament on Wednesday approved a law protecting officials accused of graft during the rule of autocrat Zine El-Abidine Ben Ali, triggering angry protests by the opposition and activists.
Waving flags and banners saying “No to forgiveness”, “Resisting against mafia rule”, around 1,500 people marched through the capital’s central Avenue Habib Bourguiba in the company of opposition leaders.
After months of protests, the law was amended from an original draft which would have also granted amnesty to corrupt businessmen. Now they will be liable to prosecution for crimes committed during Ben Ali’s 24-year rule.
—because it should not be quite so easy for Americans to empathize so proximally.
A U.S. district judge may refuse to rescind Sheriff Joe Arpaio’s conviction for ignoring a court order, despite President Donald Trump’s pardon, according to a Thursday filing.
President Trump pardoned Arpaio Aug. 25, but U.S. District Judge Susan Bolton said the federal government would need to convince her to drop Arpaio’s conviction. According to Nixon v. United States, a presidential pardon only voids punishment for a crime — it does not necessarily rescind a conviction, the Washington Post reported. If federal attorneys fail to convince her, Bolton said she will simply drop the criminal case against Arpaio but let his conviction stand.
Bolton canceled Arpaio’s sentencing but declined to vacate the conviction altogether, instead ordering Arpaio and Department of Justice prosecutors to file briefs on the matter. This week, federal prosecutors who had won that conviction for criminal contempt against Arpaio switched course and dropped the case against him entirely, claiming Trump’s pardon had resolved the matter.
When the DOJ stepped back, a small army of legal advocates stepped in, filing a raft of briefs seeking to have Bolton reconsider tossing the case, with some arguing that the pardon itself is illegal. This began with an effort spearheaded initially by Ron Fein, the legal director of Free Speech for People, who co-authored a letter last month to the Justice Department asking them not to vacate the conviction.
What followed was an extraordinary series of amicus briefs, filed by various interest groups, arguing that Trump’s pardon is so outside the realm of his legitimate pardon power that it cannot be allowed to stand. One representative filing, submitted by the MacArthur Justice Center at the Northwestern Pritzker School of Law, lays out the essential argument: “The pardon is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”
A group of teachers, human rights lawyers, and legal scholars, in a brief filed by Erwin Chemerinsky, Michael Tigar, and Jane Tigar argues the pardon was unconstitutional as it exceeded the authority granted the president in the Constitution. The brief cites Madison, in Federalist 45, guaranteeing that the Constitution would renounce the “impious doctrine in the Old World, that the people were made for kings, not kings for the people.” Urging that there is a distinction between offenses prosecuted by the sovereign, which may be pardoned, and punishments imposed by courts to protect individual rights, they argue that Arpaio’s victims have a right—rooted in Article III of the Constitution—to have their claims adjudicated, and to receive a remedy enforced by a court. These scholars conclude:
No President till now has proclaimed that a public official who violated the Constitution and flouted court orders was ‘doing his job.’ The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787.
This is not nearly so obscure as it might sound; the basic pretense is pretty much obvious: The oath of office sworn by a president declares that one will “preserve, protect and defend the Constitution of the United States”. To pardon an offense against the Constitution in order to prevent the judiciary from enforcing the supreme law of the land would seem an abrogation of the presidential oath.
Some might recall Tunisia played a leading role in that fascinating transformation known as the Arab Spring; as they continue to struggle their way upward to liberty, prosperity, and empowerment, we Americans flirt with mafioso corruption in the executive regime as part of our mad descent into the Abyss, that some might, having accomplished their task of wrecking everything, smugly remind that they were right all along, because, see, government just doesn’t work.
Which would, in its turn, seem something of a sad irony.
Image notes: Top ― Protesters demonstrate on 16 September 2017 in Tunis against parliament passing an amnesty law for officials accused of corruption under toppled dictator Zine El Abidine Ben Ali. (Photo: Agence France-Presse) Right ― Former Maricopa County Sheriff Joe Arpaio leaves a federal courthouse in Phoenix, Arizona, 6 July 2017. (Photo: Angie Wang/AP Photo)
Hagstrom, Anderes. “Judge May Keep Sheriff Joe Conviction Despite Trump Pardon”. The Daily Caller. 15 September 2017.
Lithwick, Dahlia. “Was Trump’s Pardon of Joe Arpaio Unconstitutional?” Slate. 15 September 2017.
Reuters Staff. “Tunisians march against contested corruption amnesty”. Reuters. 16 September 2017.