In the previous blog, I covered Chemerinsky's claim that the criminal proceedings against Arpaio which were specifically brought, prosecuted and adjudicated as criminal proceedings, are not criminal proceedings for purposes of presidential pardon power, provided by the text of the U.S. Constitution, Article II, paragraph 2.
Chemerinsky arrives at that stark proposition through a series of conceptually messy claims regarding the role of common law, and Old English common law, in analysis of compliance of actions of American public officials with the U.S. Constitution.
Chemerinsky claims that there is no such thing in American law as "federal common law crimes".
Which is correct.
But, Chemerinsky does not go further and does not try to suggest that there is no such thing as "federal common law" in the U.S. at all.
In fact, Chemerinsky and his team must know that the only "federal law" in existence is:
- the text of the U.S. Constitution;
- the texts of treaties of the U.S. with other countries, ratified by the U.S.;
- statutes enacted by Congress.
Cases that Chemerinsky relies upon are:
So, Chemerinsky and his team gets an F in a legal writing class for that argument.
2. Chambers v NASCO, Inc., 501 U.S. 32 (1991) by which Chemerinsky claims that "The Supreme Court reaffirmed the inherent power of district courts to enforce compliance" - the case is pure judicial legislating from the bench that attempts to make law (and allow itself to prosecute those who disobeyed them, acting as a victim and a prosecutor - in that Chemerinsky is right, but that does not make prosecutions by the victim lawful or constitutional).
In that case, the U.S. Supreme Court said the following:
"Federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them. In invoking the inherent power to punish conduct which abuses the judicial process, a court must exercise discretion in fashioning an appropriate sanction, which may range from dismissal of a lawsuit to an assessment of attorney's fees."
So, even though Chemerinsky acknowledged that there are "no federal common law crimes" in the U.S., he nevertheless relies upon a U.S. Supreme Court case where the court legislated from the bench, without constitutional authority to do that, in the institutional favor of itself, and CREATED JURISDICTION in federal courts for crimes that were not created by Congress, but are meant to retaliate against those who "disobeyed the court" (or criticized it, criminal contempt powers are used that way, too) and where courts are somehow allowed to "fashion an appropriate sanction", on a whim - while those convicted of federal crimes may not be sentenced without following sentencing guidelines.
So, somehow when the victim of a supposed crime is a court, somehow constitutional protections preventing the victim from prosecuting and adjudicating the supposed crime, stop existing, and that victim may now fashion a criminal complaint, file it, have it prosecuted and adjudicated and "fashion" a sentence, and, as Judge Bolton did in Arpaio's case, deprive the criminal defendant of a jury trial based on what "sanction" she would prefer to "fashion" if she finds the defendant guilty in the future (which she, of course, did).
Once again, there is no such thing as federal common law crimes - as Chemerinsky admitted.
So, the way out of considering what the court did as unconstitutional is simply to say that it was not a crime, and rely in that argument on some more "federal common law" that has no right to exist, and upon Old English common law that is irrelevant to the argument as to the meaning of the U.S. Constitution.
The next two cases that Chemerinsky relies upon in claiming that the power of criminal contempt is (1) not criminal and (2) is somehow "inherent" to courts and must not be regarded as criminal and subject to constitutional authority of the President to grant pardons and reprieves, are these two:
Young v. United States ex rel Vuitton et Fils, 481 U.S. 787, 785 (1987) saying:
"[Fed.R.Crim.P. 42(b)'s] assumption that private attorneys may be used to prosecute contempt actions reflects the longstanding acknowledgment that the initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function".
Note that there is no mention whether the "court orders" in question are lawful or not. People are expected to obey unlawful court orders anyway, I guess, that is the "rule of law" in this country.
In Young, attorneys for a civil litigant with financial interest in the outcome of proceedings were appointed as criminal prosecutors of a separate criminal contempt case, and the court ruled that it is ok as long as a judge supervises it. But, in this case, a criminal defendant's right to an IMPARTIAL PROSESCUTOR was taken away, and that should be understandable for Chemerinsky and his team of criminal defense attorneys. It is a basic due process right not to be prosecuted in a criminal proceeding by a person with a financial interest in the outcome.
In this case, the criminal prosecutors' loyalty was not with the People of the United States, as it should be in criminal cases, but with private parties who paid them.
Again, the constitutional scholar Chemerinsky considers this situation as being good, proper and to be perpetuated in Arpaio's case - even though in that case it was the U.S. Attorney's office who prosecuted Arpaio. Chemerinsky simply says - it does not matter, it is as if the U.S. Attorney's office and "its personnel" are acting as private attorneys in prosecuting Arpaio.
U.S. Attorney's office paid by taxpayers are suddenly private attorneys? Paid by whom? How did such a brilliant idea come to a constitutional scholar of the supposed caliber of Chemerinsky?
The next case Chemerinsky cites is Michaelson v United States ex rel Chicago, 266 U.S. 42 (1924):
"That the power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law. It is essential to the administration of justice. The courts of the United States, when called into existence and vested with jurisdiction over any subject, at once became possessed of the power".
Actually, Chemerinsky may have skipped READING the cases he was citing to, but Michaelson actually indicates that a defendant in criminal contempt of court cases has a right to a JURY TRIAL on demand - which Judge Bolton denied to Arpaio.
And, as to "settled law", since ancient Romans, there exists a legal concept that "abusus non tollit usum", or that incorrect use of the law does not make that incorrect use a correct use.
So, claiming that something becomes legitimate simply because it has been repeated many times, is not an argument at all.
Nor is an argument a statement, made without any basis in a federal statute or the U.S. Constitution, that somehow federal courts "became possessed with [contempt] power" the moment they "came into existence".
If a judge makes a certain statement, that does not automatically become law, simply because a federal judge lacks law-MAKING capacity, such a capacity is within the exclusive power of the Legislative branch under Article I of the U.S. Constitution.
But the fact that Chemerinsky & team did not have a clue WHAT they are arguing for, against or about, as long as that Arpaio should go to jail no matter what because Arpaio and Trump do not have any rights or authority even if that is written in black and white in the U.S. Constitution was revealed in his statement that "the judicial contempt power [is a] power with as good or better common law pedigree than any presidential pardon".
It appears that Chemerinsky & team completely forgot why they are filing the amicus brief where they are trying to prove that the President did not have a power under the U.S. Constitution to grant a pardon while somehow basing that argument that the presidential pardon power has less "common law" pedigree than a supposedly "inherent" contempt of court power of the court that is not reflected anywhere in the U.S. Constitution.
Somehow, Chemerinsky forgets that clear language of the U.S. Constitution does not trigger interpretation, and the presidential authority to pardon in criminal cases is unquestionably clear.
Fiddling with the word "offense", as Chemerinski & team do in the brief, and trying to claim that somehow "offense" does not mean "crime", and what Arpaio was charged with is not a "crime", is defied by the interchangeable use of the words "criminal offense", "misdemeanor" and "felony" by all courts, including federal courts, and by the fact that Arpaio's case is docketed as a "felony".
Also, Chemerinsky makes a starkingly baseless proposition that the U.S. Constitution must be interpreted - and its meaning controlled - with what was happening in courts of another country 800 years ago.
So, somehow the U.S. Supreme Court claims "judicial independence" from courts of other countries that declared the death penalty a human rights violation and refuses to pronounce it unconstitutional.
But, the same federal courts must now be shackled with how contempt was understood 800 years ago in England, even if it contradicts the clear text of the U.S. Constitution?
That is some incredible bullshit coming from a supposed legal expert and constitutional scholar.