Federal Judge Susan Bolton will hear arguments today about whether she should (as his lawyers and the government contend) throw out the conviction of former Arizona sheriff Joe Arpaio because he has been pardoned by President Donald Trump; hold that the President’s pardon is unconstitutional on various grounds (as several public interest groups have argued in their briefs) and thereby provoke a legal test of the constitutionality of the President’s pardoning power in certain situations; or (as she has suggested she might) not challenge the pardon itself but leave the conviction in place as a possible deterrent to other wrongdoers.
Her ruling could be crucial not only for Arpaio, but also for the on-going Russia-connection investigation since it had been suggested that President Trump might pardon (or at least promise to pardon) suspects in Special Counsel Robert Mueller’s investigation to keep them from flipping,
Although the Justice Department has backed Arpaio’s “motion for vacatur,” the judge in response wrote that “The Government appears to agree with the Defendant, but furnishes no authority conferring so broad a scope to orders of vacatur issued under similar circumstances.”
The judge cited the case of Nixon v. United States in which the U.S. Supreme Court said “But the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is ‘[a]n executive action that mitigates or sets aside punishment for a crime.'”
In papers I lodged with her, it was argued that “The president can’t use the pardon power to immunize lawless officials from consequences for violating people’s constitutional rights.” This contrasts with the Arpaio lawyers’ arguments that “The president’s pardon moots the case, and it warrants an automatic vacatur of all opinions, judgments, and verdicts related to the criminal charge.”
But although many commentators have argued that the President’s pardoning power is “unlimited,” and some have even worried that he might issue blanket pardons to all those being investigated by Special Counsel Robert Mueller to frustrate the investigation, she is reviewing contrary legal arguments.
Some of these counter arguments contend that the president’s constitutional power to issue pardons “is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.”
Similarly, they argue, Trump cannot use pardons to undercut a court’s power to protect people from being denied their Due Process rights by immunizing otherwise unlawful acts like Arpaio’s. They contend that “the president cannot be allowed to weaponize the pardon power to circumvent the judiciary’s ability to enforce and protect constitutional rights,”
A brief amicus curiae contends that “the power of contempt for violating injunctions requiring government officers to cease their unconstitutional actions – or risk fine, imprisonment or both – is a vital means by which the judiciary enforces constitutional rights. If the President may employ his pardon power to relieve government officers of accountability and risk of penalty for defying injunctions imposed to enforce constitutional rights, that action will permanently impair the courts’ authority and ability to protect those inalienable rights. The result would be an executive branch freed from the judicial scrutiny required to assure compliance with the dictates of the Bill of Rights and other constitutional safeguards.”
Another brief argued that the pardon is unconstitutional is based upon separation of powers argument. It contends that “The pardon is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”
Still another group argues that the pardon was unconstitutional because it was ultra vires since it exceeded the pardon authority granted to the president by the Constitution. They argue that there is a distinction between pardons issued for crimes against the government (as in “The U.S. vs XYZ”) which are constitutional, and pardons for punishments imposed by the courts to protect human rights which arguably cannot be subject to a president’s pardon. As their brief puts it, “The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787” when the Constitution was adopted.
While these legal arguments may initially sound like a reach with little chance of success under ordinary circumstances, they could prove effective under a new practice being called “Trumplaw.”
This judge’s actions to date, and several injunctions blocking a string of Trump’s actions on unusual if not unprecedented legal grounds, lends credence to this unusual suggestion.
Several scholars, including even some who oppose him, suggested that some judges appear to be adopting a new jurisprudence called “Trumplaw” aimed uniquely at this President; a method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating new legal principles and/or overlooking (or at least minimizing) other established ones.
For example, a piece in the New York Times described this new method of deciding cases as “a set of restrictions on presidential action that only apply to Donald Trump. This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves.”
David French of the National Review, who has been described as a NeverTrumper, nevertheless warns about this “strange madness [which] is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump.”
In his words, “when existing precedent either doesn’t apply or cuts against the overriding demand to stop Trump, then it’s up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the ‘right result'” – “an otherwise lawful order is unlawful only because Donald Trump issued it. . . . All this adds up to Trumplaw, the assertion by the federal judiciary of the legal authority to stop Trump.”
Although the President allegedly has unfettered power to completely pardon anyone, Bolton has so far refused Arpaio’s request that his conviction be thrown out based upon Trump’s pardon.
Rather that accede to this request, Bolton directed both Arpaio and the Justice Department to file briefs on the legal issue of whether she should grant his request. This arguably flies in the face of a 1925 Supreme Court decision which unanimously upheld a presidential pardon for a criminal contempt of court sentence; exactly the unusual type of pardon involved here.
However, not granting Arpaio’s motion may provide the only way in which the President’s pardoning power – including his power to pardon those involved in the Mueller investigation to keep them from flipping – can be challenged in court, and possibly provoke a judicial ruling limiting its sweep.
Thus, constitutional scholar Erwin Chemerinsky has suggested that one way the President’s seemingly unfettered pardon power might be challenged would be for her to refuse to fully recognize it.
He said “in theory, Judge Susan Bolton, the judge in the case, could say that, notwithstanding the pardon and notwithstanding Ex Parte Grossman [in 1925], she believes the law has changed sufficiently that she can go ahead and sentence Arpaio. Arpaio would appeal, and the Ninth Circuit could then affirm Judge Bolton. In such a ruling, Bolton could cite a much later 1987 ruling in which the Court said ‘The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.’”
In short, many judges, in addition to wanting to oppose much of what Trump does because they strongly object to him and his orders, may also be willing to bend and stretch the law – including venturing into uncharted waters such as his pardon power, or his power to fire prosecutors who do not comply with his priorities – because Trump has repeatedly attacked judges, by name as well as collectively.
It is likely that other judges strongly resent such attacks, both openly and perhaps even subconsciously, because judges are not ethically permitted to speak out and defend their own actions from attack, but also because an attack on several named judges is likely to be seen as an attack on all of them.
There may be little that Trump can do – short of an ultimate appeal to the U.S. Supreme Court where he may find a more sympathetic audience – if judges including Bolton decide that stopping some of what they may regard as his outrageous actions requires some obstruction – or at least manipulation – of justice.
If so, many may regard this as poetic justice for a runaway president, but it is certainly not the way law is supposed to work.
John F. Banzhaf III is a professor of public interest law at the George Washington University Law School.
Update: Judge Bolton decided to abide by the pardon and dismiss Arpaio’s guilty verdict.