Trumplaw May Trump President's Pardoning and Firing Weapons

WASHINGTON - Sept. 5, 2017 - PRLog -- Although many are worried that President Trump could use his pardoning power to thwart Special Counsel Mueller's investigation, by issuing or suggesting he will issue pardons to those under investigation to keep them from being flipped, and/or use his executive power to cause Mueller's firing, a new recently recognized phenomena already being called "Trumplaw" could limit these seemingly unlimited presidential powers, suggests public interest law professor John Banzhaf.

        A little noticed action just taken by a federal judge, and several injunctions blocking a string of Trump's actions on unusual if not unprecedented legal grounds, lends credence to this unusual suggestion, says Banzhaf, whose recent analysis explained how Trump could issue blanket pardons to all involved in the Mueller investigation to induce them to remain quiet - a tactic just undercut by a reported arrangement to investigate Trump associates on state criminal charges which are beyond the president's pardon powers.

        Several scholars, including some who oppose him, suggested that courts 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."

        Law Professor Todd Henderson sums it up simply: "This is @realDonaldTrump-specific law, which is lawless."

        Thus, while a president's power to issue pardons is almost always described as "unlimited," it is now being challenged regarding the unprecedented pardon of former Arizona sheriff Joe Arpaio.

        Although the President allegedly has unfettered power to completely pardon anyone, federal District Court Judge Susan Bolton has so far refused Arpaio's request that his conviction be thrown out based upon Trump's pardon.  Arpaio's lawyers argue 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 the judge, rather that accede to this request, 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.

        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."

        Meanwhile, the Arpaio pardon is being attacked on another front in a complaint, filed with the Public Integrity Section of the Criminal Division at the Justice Department, which raises a very novel legal theory.  The theory was summarized this way by a lawyer for the group: "the president can't use the pardon power to immunize lawless officials from consequences for violating people's constitutional rights."

        In effect they argue 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.  While this argument may in the abstract sound weak if not bizarre, it becomes less so when considered in context.

        Courts have refused to uphold Trump's second so-called Muslim ban order on grounds that many legal scholars, some of whom strongly oppose the order, nevertheless have suggested seem to be contrived: e.g., because of his prior statements, and based upon radically new standards of judicial standing.


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