In papers lodged with her last week, 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 his 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.”
The Justice Department supports his position, telling the judge on Monday that “the government agrees that the Court should vacate all orders and dismiss the case as moot.”
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.
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. It contends 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 filed on Monday 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.”
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 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 not taken action on Arpaio’s request that his conviction be thrown out based upon Trump’s pardon.
Rather that accede to this request, Bolton has 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 his 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 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.