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Constitutional Showdown Today on Trump's Pardon of Arpaio
Ruling Could Undercut Mueller, or Even Provoke Constitutional Challenge
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,"
In papers lodged with her by Banzhaf, 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,"
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 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 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 arguing 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 because it exceeded the pardon authority granted to the president by the Constitution. The 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 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.
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.
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, argues Banzhaf.