Dean Chemerinsky's revelations in his amicus brief re Arpaio pardon, Part I - criminal proceedings against Arpaio listed as a felony, brought, prosecuted and adjudicated as criminal proceedings are not criminal proceedings when it comes to presidential pardon power

As promised, this is the first of separate blogs analyzing the outrageously incompetent and politically bent amicus brief of Berkley Law School Dean Erwin Chemerinsky claiming that the pardon given by President Trump to Joe Arpaio is unconstitutional.

Chemerinsky's take:

criminal proceedings against Joe Apraio were not criminal proceedings, contempt of a federal court is not an "offense against the United States" within the meaning of the U.S. Constitution, and presidential pardon power under Article II paragraph 2 of the U.S. Constitution does not apply these proceedings.

First, let's go to the source of presidential pardon power, Article II paragraph 2 of the U.S. Constitution that all judges, and Dean Chemerinsky, and his lawyers, and the President, are sworn to protect and uphold:

the President of the United States "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment".

Dean Chemerinsky has an interesting position as to what two words in the U.S. Constitution mean:

• "offenses" and, believe it or not,
• The United States.

This is what Dean Chemerinsky states through his two attorneys, both of whom have clerked for federal judges, and both of whom are supposedly engaged in criminal defense:

So, Chemerinsky and his crew of lawyers (former judicial law clerks) claim that proceedings against Arpaio are not REALLY criminal proceedings, but that perceiving proceedings against Arpaio as criminal would be a "false impression" obtained by an "inattentive observer" from the fact that the U.S. Attorney "personnel" prosecuted Arpaio.

Yet, ATTENTIVE reading of the case will not lead the "inattentive observer" to believe that it is a criminal case, it will SHOW an attentive observer that it IS a criminal case and could may be no other, from how it was

• brought,
• prosecuted and
• adjudicated.

CrimLaw 101 - POINT I how do you distinguish a criminal case from a civil one?

Correct answer: by its name.

A criminal case will always have the government as the plaintiff, "People v. XYZ" if it is a state case, and "US v XYZ" if it is a criminal case.

That CrimLaw 101 is taught in Dean Chemerinsky's law, too.  Obviously, he and his attorneys need a refresher course on that.

POINT II

If it is NOT a criminal case, why was it referred out of a pending civil case into a separate proceedings, to the U.S. Attorney's office, for criminal prosecution?

POINT III

Can you change the nature of the case from criminal to civil only after the conviction, in order to deny a person a remedy of an amnesty?

• There are only two types of contempt proceedings in this country: civil and criminal.
• Civil contempt proceedings are court proceedings to MAKE the supposed violator of a court order to comply with that order.  In such cases, if the contemnor is found in contempt and put in jail, he is believed to have keys from his jail cell in his own pocket - as soon as he complies, he must be let out.
• A criminal contempt proceeding is a separate criminal proceeding where charges brought, prosecuted and adjudicated in accordance with criminal procedure law.  The goal of criminal proceeding is PUNISHMENT, not ensuring compliance with the law.
• There is no other types of contempt proceedings in U.S. law;
• Since Arpaio was referred by Judge Snow OUT OF a civil proceeding, TO the U.S. Attorney's office, the office that usually prosecutes crimes, for prosecution specifically for criminal contempt, outside of the pending civil proceedings, and the case was filed, docketed,  prosecuted and adjudicated as a criminal case, it is too late to say it is not a criminal case for purposes of pardon only.

The answer to the question above is clearly "no", and this is a constitutional law question that Dean Chemerinsky, a supposed constitutional scholar, must be able to recognize and resolve - when the government gives a person a notice that he is prosecuted CRIMINALLY, the government may not change its claim that it is now a civil case after it followed criminal procedure and obtained a criminal conviction, complete with a threatened criminal sentence.

Of course, Judge Susan Bolton already used a similar trick during the proceeding, depriving Arpaio of his right to a jury trial by granting an unheard of prosecution's motion for a bench trial, over the defendant's objection, she jumped ahead of the trial, assumed that the defendant was guilty and comes in front of her for sentencing, accepted prosecution's claim that he should not be sentenced for more than 6 months, and based on that assumption, ruled that he is not entitled to a jury trial.

Chemerinsky here is going even further and claiming that it was not a criminal case at all.  I wonder then why Arpaio was set for sentencing to be put in federal prison.  Are we putting people in prison in the United States of America in civil cases?  But, in civil cases that is done not in punishment, but only to coerce compliance with the law.

Quite a bit of mess in the esteemed Professor's head as to the most basic concepts of criminal law.

The esteemed Professor and his team actually claim that "offenses", "misdemeanors and felonies" and "criminal contempt of court" do not mesh, and that presidential pardon power extends only to "offenses", which is not the same as the crime of criminal contempt. 

The Professor slipped and fell upon his own tongue at the end of his long and convoluted argument when he actually claimed that Arpaio was prosecuted not for a crime at all, but for an ancient "appeal of felony", in a private proceeding, and that the fact that he was prosecuted by the government was just a coincidence that creates a "false impression" of criminal prosecution in an "inattentive observer".

Actually, the court docket lists proceedings against Arpaio, from day one, as a FELONY.


A felony is undoubtedly a crime that is subject to the presidential pardon power.

And, a criminal proceeding is undoubtedly defined by one of its main goals that is lacking in a civil contempt proceeding - to PUNISH, not to coerce into compliance.

There is no doubt that a federal court is a part of the federal government, its 3 branches - executive, legislative and judiciary.

There is no doubt that the proceeding against Arpaio had a purpose to punish him, not to coerce his compliance with a court order - that was the whole reason of singling the proceeding out into a separate criminal proceeding, through a referral by Judge Snow.

And, here is the judge's order against Arpaio at the end of the bench trial:

"Guilty of criminal contempt".

Sentencing (not a "disposition" in a civil contempt case) set.

What kind of "false impression" can all of this documentary evidence create in an "inattentive observer", according to Chemerinsky?

So, what does Chemerinsky think it is?

A civil contempt?

A criminal contempt?

Neither of the two.

Chemerinsky finds that it is this:

Of course, there is no such thing as a THIRD type of contempt, on top of civil or criminal, in US law, and Chemerinsky, as well as his lawyers, know it too well.

At the same time, in the same brief, Chemerinsky explained what an "appeal of felony" (a creature inexistent in the U.S. law) actually is:

This table shows that the "appeal of felony" is not only irrelevant to an analysis whether the pardon violated the U.S. Constitution, but that the "appeal of felony" would be unconstitutional, which any licensed attorney must know, must less a dean of law school and his team of former judicial law clerks. 

	Appeal of felony	Criminal contempt of court against Arpaio
Basis	English common law	Statute and “inherent power of the court” by federal common law that Chemerinsky says does not exist: “…there are no common law crimes in the federal system”, p. 10, lines 11-12.
Time of existence	13th to 16th Century	Does not exist in the U.S. and never did
Country	England, a monarchy	U.S., a constitutional democracy that split from England, in part, because they disagreed with English laws
Type of action	Private	Government
Who prosecutes	A private party	Government
Essence	A private action brought by a supposed victim of a crime against the supposed perpetrator of a crime, a mixed tort (civil) and criminal proceeding.	There is no such thing in the U.S., victims are individuals with a vested interest in the outcome of proceedings, and are not allowed to prosecute crimes on their own behalf, it is a violation of due process for defendants. In the US, torts are brought by the supposed victims of constitutional violations in separate civil rights actions, it was actually done in a civil rights lawsuit against Arpaio, it remains pending, and the criminal proceedings are separate and distinct from that lawsuit

So, despite clear documentary evidence that the case was brought, prosecuted and adjudicated as a criminal case, somehow Chemerinsky has the lack of professional self-respect to argue that it is not a criminal case, but is some kind of a common law creature similar to an old English common law of "appeal of felony", which is in itself unconstitutional in the U.S. as allowing a person with a personal interest in the outcome of a criminal proceeding to engage in a vendetta and prosecute such a criminal proceeding.

I wonder whether Chemerinsky actually knows that part of the reason why courts are established is to avoid personal vendettas in resolution of disputes.

I also wonder if Chemerinsky and his criminal defense attorney lawyers are familiar with the concept of the due process right to an impartial prosecutor which a victim prosecuting "appeal of felony" cannot possibly fit.

I wonder if it bothers Chemerinsky, at least a little bit, that there is no such thing as "appeal of felony" in the U.S. federal law, which consists ONLY of U.S. Constitution, federal treaties, statutes and regulations - all written documents.
So, the next no-less-crazy set of confused vibes that Chemerinsky throws at Judge Bolton that I am going to cover in a separate blog is:  whether the Old English common law must define what the U.S. Constitution means - which is clearly what Chemerinsky pushes for.

For the next blog in this series, stay tuned.