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Federal Judge Defying Trump Over Arpaio Pardon
She Has Unique Opportunity to Provoke Legal Challenge to "Unlimited" Pardoning Power
Her decision was explained in an order issued yesterday, notes public interest law professor John Banzhaf, who predicted her decision, suggested that her ultimate ruling may be affected by a new movement among some judges being called Trumplaw, and that she ultimately could trigger a constitutional ruling reining in, for the first time, the president's power to pardon.
In papers he filed 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."
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."
Interestingly, 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."
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
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