Dean Chemerinsky makes startling (and startlingly incompetent) statements in an amicus brief regarding the pardon of Joe Arpaio

I wrote on this blog about the criminal case against Joe Arpaio, see Part I and Part II here, about how politicized and unlawful the whole proceedings, including the conviction, was, and that if we want to be the nation ruled by the rule of law, we must accept that the rule of law equally applies and gives rights to people we like and especially to people we do not like.


That approach to the rule of law is, apparently, not in the mainstream of political and legal thought nowadays.

For example, recently the new dean of the University School of Law at Berkeley, California, #ErwinChemerinsky, promoted by his school as a "thought leader" and a "living legend—a person who exemplifies the very best that the field of law has to offer: brilliant, warm-hearted, thoughtful, open-minded, and deeply engaged in the culture of public service", filed an amicus brief with the U.S. Supreme Court challenging constitutionality of Presidential pardon to Joe Arpaio.

Erwin Chemerinsky is a somewhat of a notorious figure.

• He was a paid lecturer of BarBri while remaining a professor and/or a dean of various law schools, while BarBri was sued for engaging in anticompetitive activity and underhanded tactics in driving its cheaper and better rivals out of business, thus undermining the quality of legal education and, ultimately, the quality of lawyers for us, the public and consumers of legal services;
• He opposed the recall of judge Persky who sentenced an athlete from his own alma mater to 6 months in jail (3 months for good behavior) for non-consensual sex with an unconscious woman - and the conflict of interest for Chemerinsky, an attorney licensed to practice law in California, supporting a judge against public outrage, while the judicial branch regulates and controls Chemerinsky's own law license and livelihood, is clear;
• In 2016, Chemerinsky not only represented a judge who was disqualified out of several cases through the use of a peremptory challenge by prosecutors, and not only argued that an absolute right to a peremptory challenge of a judge by a party is not absolute and has some kind of constituional limitations (while representing a judge who is not a party in a criminal proceedings and has no say in the matter), but also called for a federal investigation of prosecutors against whom his powerful client (a client who belonged to the branch of the government regulating Chemerinsky's own law license) belonged.  

I do not know how "warm-hearted" Erwin Chemerinsky is, but I do know criminal law, and I have a funny feeling that Erwin Chemerinsky had no clue what he was writing about, and wrote to justify his ultimate politically sought conclusion - that the pardon is unconstitutional.

In his amicus brief regarding the supposed unconstitutionality of Arpaio's presidential pardon, Chemerinsky follows and attempts to encourage the latest dangerous trend of identity politics in law where the identity of the party defines what rights that party is given, or not given by courts.

Since the election of Donald Trump as the President of the United States I monitor an interesting phenomenon in courts – the rapid disappearance of laws as basis of judicial decisions.

Any civil rights attorney knows how difficult it is to bring a civil rights case through a motion to dismiss and/or a summary judgment.

And, any civil rights attorney knows that it is nearly impossible to obtain a preliminary injunction in a civil rights case in federal court.

All that changed when Donald Trump or a member of his administration (like Jeff Sessions) are sued – even in their official capacities, which means, as any law professor teaching Civil Rights Litigation will tell you, means that the American taxpayers are being sued.

Reason and “respect to precedents” and to statutes disappeared as well as the law.

Preliminary injunctions are handed left and right.

·        Prohibiting the President to enforce immigration laws and block entry of certain immigrants into the country for considerations of National security – now courts demand that the President spill national security secrets (for which judges do not have clearance) in open court proceedings;  now, contrary to statutory law and existing precedents, immigrants located beyond U.S. borders suddenly acquired a right to sue that they never had before, and so did their relatives within the country, as well as their supposed employers and universities where they are going to supposedly enroll – and standing on purely economic grounds is judicially created for all these categories that supposedly trump (no pun intended) President Trump’s absolute exclusive prerogative to handle national security questions and regulating who does or who does not get to get a visa and entry into the country;

·        Prohibiting the federal government from deciding whether to give or not to give states or municipalities gifts of federal money – and mandating that they finance state social and law enforcement programs, a state obligation that federal taxpayers do not have to finance, and judges have no right to enforce.

We have people suing Donald Trump for issuing an executive order (the so-called “travel ban”) and for repealing an executive order (DACA) – I will analyze the grounds for the lawsuit in a separate blog.

We have people suing Donald Trump’s administration for a “right” of immigration attorneys NOT to represent people throughout an immigration proceeding – while claiming that it is done in those same people’s best interests – and they actually win preliminary nationwide injunctions.

And, apparently, all these lawsuits are fueled and brought by lawyers who have no compunction about spending scarce judicial resources and taxpayer money, putting the law on its proverbial head and replacing the U.S. Constitution, federal statutory law and the concept of separation of powers with a wholesale judicial whim based on just one principle – the identity of the U.S. President who dared to have been elected when the establishment did not want him there.

Presidents before Trump deported people – and no lawsuits were filed.

No DACA existed before President Obama – and previous presidents were not sued, or had riots in the streets of illegal immigrants claiming their supposed right to remain in the country, simply because they already received free education at taxpayer’s expense without taxpayer’s consent in this country and simply because they were children when they were brought here by their parents.

It is apparent that the media, the public who does not like this particular President finds fault with him at every turn – hair color, choice of wife, etc.

Public discourse about what the President of the United States is doing, under the 1^st Amendment, may be as vile, without becoming violent, as the public, or its separate members, wants it to be.

Yet, federal courts are bound by laws to resolve disputes based on federal law only – and that is, as the Supremacy Clause states:

·        The text of the U.S. Constitution;

·        The laws made pursuant to that U.S. Constitution – which means only statutes enacted by the U.S. Congress; and

·        U.S. Treaties.

That’s it.

Nothing else.

There is no such thing as “federal common law”, and precedents of any federal courts, including the U.S. Supreme Court may not be considered to outweigh the above three components of the Supreme Law of the Land.

Moreover, rights of the President clearly established by the text of the U.S. Constitution and/or a statute enacted by U.S. Congress may not be questioned by a court unless the court wants to declared the statute the President follows unconstitutional.  Courts have no rights to CHANGE the law through interpretation – only the U.S. Congress, under Article I of the U.S. Constitution has the power to create laws.

Let us revisit what separation of powers means.

Executive branch (President)	Legislative branch (Congress)	Judicial branch (courts)
Enforces the U.S. Constitution and statutes enacted by the U.S. Congress through powers provided to the President under Article II of the U.S. Constitution	Enacts laws within its Article I authority and in compliance with the U.S. Constitution, after consulting with their constituents – VOTERS, citizens of the U.S., not immigrants and not illegal aliens	Resolve individual disputes between parties based on the U.S. Constitution and statutes enacted by the U.S. Congress

·        Federal courts may not set policy, it is an exclusive legislative function of the U.S. Congress;

·        Federal courts may not change laws through their interpretation, to mean the opposite of what the laws’ clear text says;

·        Federal courts may not write into the statutory law or into the U.S. Constitution what is not there.

Courts may only resolve individual disputes based on the existing U.S. Constitution and federal statutes and treaties – or declare those federal statutes and/or treaties unconstitutional. 

That’s it.

But, since the election of Donald Trump as the President of the U.S. it has become even more obvious that courts are not content with the role of a detached apolitical arbiter dispassionately applying the law handed down to them by the U.S. Constitution and the U.S. Congress.

Courts want to be creators of the law, courts seek publicity through populist decisions, and there is a whole class of prominent, rich attorneys who support and encourage federal courts to usurp the role of lawmaker and to even change the U.S. Constitution by

Unfortunately, at least judging by comments in the media, there is a wide-spread belief in the public that anything – anything – that comes from under a pen of a judge is not only “law”, but “The Law of the Land”, to be obeyed without question, and that somehow the unlawful judicial lawmaking is, on the contrary, the way it should be, and everyone in this country “must” respect unlawful court orders made contrary to the U.S. Constitution and/or federal statutes as “law”.

And, unfortunately, prominent-name attorneys artfully manipulate the public in continuing with this dangerous illusion, that courts in this country are lawful lawMAKERS.

One of such dangerous examples that I came across recently is the now-dean of the Berkley Law School in California, Professor Erwin Chemerinsky.

Having disregarded his own conflict of interest, as a Dean of law schools that, no doubt, receives donations from large law firms representing employers that need cheap legal and illegal immigrant work force, and is a party against the federal government to make the President in a lawsuit to make him cancel his visa restrictions in order to benefit his law school and university financially, Erwin Chemerinsky recently filed an amicus brief with the U.S. District Court for the District of Arizona arguing that the recent presidential pardon of Joe Arpaio is unconstitutional.

This challenge to the pardon of Joe Arpaio by President Trump is a quintessential litmus test as to the rule of law in this country.

Should a legitimate exercise of presidential power as per the text of the U.S. Constitution, Article II, paragraph 2, be considered unlawful simply because it was done by a supposedly unpopular president in favor of an unpopular sheriff?

If it should, then we do not have the rule of law in this country.

I wrote in this blog about the criminal proceedings against Joe Arpaio and their stark illegitimacy, about jurisdictional defects in proceedings and screaming judicial bias of the Clinton-appointee judge that would make the blood of any criminal defense attorney, and of any member of the public knowing the law boil.

But, somehow, any violation of the law is good if that is against a person you do not like – because that is the sum and substance of public comments about Arpaio’s pardon.

President is bad, so his pardon is also bad.

Arpaio is bad, so to pardon him was bad – no matter what happened in his criminal proceedings, and if a judge issued a decision in those proceedings, it must be good, and President Trump should not have touched it with a pardon.

By the way, the U.S. Justice Department already moved todismiss Arpaio’s conviction as moot, over the resistance of the judge, so the prosecuting party does not want to continue to sentencing, cases should be closed and shut – if that would be any other criminal proceeding.

But, not here.

Here Dean Erwin Chemerinsky is throwing his heavy-weight name around in order to claim that the pardon was unconstitutional and to put the already dead criminal proceedings back on the docket – while making some outrageously incompetent claims that would result in an F in Criminal Law 101 and Constitutional Law 101 in Chemerinsky’s own law school, and on a bar exam.

A person who positions himself as an expert in constitutional law should have at least more self-respect than to make claims Chemerinsky is making, embarrassing himself in front of the legal community, his own students and the public – and putting into his law students an impression that the law does not matter when there is a political and financial goal to attain through the influence of courts.  And, by the way, Chemerinsky is arguing that the pardon is unconstitutional to the same judge whose decision the pardon affects – at the trial level.  Like – “Your Honor, see what that bad President did to your perfect order, declare that bad President’s Article II paragraph 2 presidential pardon authority unconstitutional NOW, what are you waiting for, he hurt your feelings so!”.

The claims of Professor Chemerinsky, through his two attorneys who both clerked for federal judges and should know better than to write such gibberish, can be seen in their full glory, here.

In view of Professor Chemerinsky’s influence on the legal community, courts and public opinion and the danger that his outrageous statements to the court present for civil rights in general, and criminal defendants’ rights in particular, I will analyze Professor Chemerinsky’sclaims, one by one, in separate blogs.

I am certainly not the only and not the first critic of Professor Chemerinsky's amicus brief regarding Arpaio's pardon, but, judging by the fairly bland criticism that I have read of the Chemerinsky's amicus brief, critics do not dare to go deep enough into the dangers of a celebrated supposed legal scholar going amok with a result-oriented attempt to influence federal judges with claims that are incompetent albeit pushed by a team of attorneys,


Larry A. Hammond (who boasts in his advertisement his involvement in "high profile criminal defense cases while demonstrating in the amicus brief a lack of knowledge of the most basic principles of criminal law)

and Josh Bendor, 

both of whom have a long history of federal judicial clerkships, which takes away any excuses that their deliberate manipulation of the court with incompetent claims is anything but deliberate.

Some of the main claims by Chemerinsky and his attorney team of former federal judicial law clerks that I am going to review in separate blogs are (I will provide a basis why these claims are not well grounded in law, fact or precedent in separate blogs):

• That proceedings against Joe Arpaio where the President granted his pardon were not criminal proceedings;
• That the notion of "criminal offense" does not equal a "misdemeanor" or a "felony";
• That federal courts must provide a remedy in each case where a public official violates people's constitutional rights;
• That there is no such thing as federal common law;
• That interpretation of Old English common law going back to the 13th century is not only a valid source for interpretation of the U.S. Constitutien, but should apparently take precedence over the text of the U.S. Constitution and its legislative history;
• that THIS presidential pardon (somehow apart from all others) is unconstitutional because it encroaches upon judicial independence (even though such a mode of "encroachment" is written into the text of the U.S. Constitution all judges, Sheriff Arpaio, President Trump, Dean Chemerinsky and his two attorneys have sworn to uphold).

Nevertheless, such supposedly "expert" legal blogs as Above the Law cited to the brief as if it is Gospel, and blasted - no, not Chemerinsky for incompetence and attempt to influence the court with his gibberish, no, of course, not - Trump again.

The use of presidential pardon is now unconstitutional, says Chemerinsky, seconded by Above the Law, for the main three reasons, here they are:

I will start posting analysis of each of these issues today.  Stay tuned.