Judge Upholds Arpaio Pardon, But Findings May Remain
She Refuses Numerous Requests to Declare Tramp's Pardon Unconstitutional
"This ruling comes as no surprise to most legal experts," says public interest law professor John Banzhaf, who had noted some of the arguments and put them before the judge. But he had said at the time that it was unlikely that she would agree with any other them unless, like some other judges, she applied a new development or judicial philosophy which is being called "Trumplaw."
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."
Had Bolton refused to honor the Arpaio pardon, it would have opened the door to a court challenge arguing that a president's pardoning power is not unlimited. Indeed, some speculated that Trump might issue a pardon to many of the people now under investigation by Special Counsel Robert Mueller to protect them from pressure by Mueller to flip and testify against Trump or others.
Indeed, as Banzhaf has pointed out, Trump could issue a blanket pardon - for which there is amply precedent - without even singling out individuals by name, and could even pardon himself.
Perhaps a president's power to pardon is absolute and unlimited, even if he uses it to protect himself and those close to him from indictment, says Banzhaf, but the briefs in opposition filed with Bolton suggest that there may be future tests of this power, perhaps in a more appropriate case and before a court more sympathetic to these concerns.
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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