Judge's Nixing of Arpaio's Motion Could Test Trump's Pardoning Power

WASHINGTON - Oct. 20, 2017 - PRLog -- Federal Judge Susan Bolton, by denying a request made jointly by former Arizona sheriff Joe Arpaio and the Justice Department to vacate his conviction, may have provided a unique opportunity for judges to limit what had generally been seen as a president's completely unlimited pardoning power, says public interest law professor John Banzhaf.

        This could be very important, argues Banzhaf, because some have 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, and such rulings might not otherwise be subject to constitutional challenge because nobody might have legal standing to initiate an appropriate law suit.

        Constitutional scholar Erwin Chemerinsky had 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.'"

        While refusing to vacate his criminal record is far short of sentencing him despite the pardon, it may provide the only way to even get this important issue before a court, suggests Banzhaf.  Interestingly, and perhaps unwittingly, Arpaio's lawyers have already appealed to the Ninth Circuit.

        For example, if Trump granted a full and complete pardon to former national security adviser Michael Flynn so that he could resist Mueller's pressure to flip to avoid a federal indictment, there may be nobody with legal standing who could challenge such a decision in court, says Banzhaf.

        It is even possible that the Ninth Circuit would go beyond simply upholding Judge Bolton's decision not to vacate Arpaio's criminal record, and hold - based upon a variety of legal theories presented to Bolton - that the pardon was unconstitutional.  Even if the judges do not do so as part of a formal holding, the mere suggestion by one or more judges that any such pardon might be invalidated because it was clearly being used to obstruct justice would undercut Trump's power to try to emasculate Mueller's investigation.

        In any such ruling, the Ninth Circuit could also suggest that Trump might lack the legal power to issue a full and complete pardon to himself - a concern some have raised - or that, at the very least, such a pardon might be struck down by the courts as unconstitutional.

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
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf