An Arizona District Court judge has not granted a motion to throw out charges against Arizona’s Sheriff Joe Arpaio, and may even try to deny it, despite President Trump’s pardon.
District Court Judge Susan Bolton is reviewing arguments filed that argue against dismissing the charges and has not moved forward with granting the motion filed by Arpaio’s lawyers following the full presidential pardon last month, according to LawNewz.
Arpaio’s attorneys argued 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.”
— LawNewz (@law_newz) September 13, 2017
But papers filed with Bolton last week allege the “president can’t use the pardon power to immunize lawless officials from consequences for violating people’s constitutional rights.”
Attorney General Jeff Sessions’ Justice Department has backed Arpaio’s position and told the judge on Monday that “the government agrees that the Court should vacate all orders and dismiss the case as moot,” according to LawNewz.
While some contend that Trump’s pardoning power is “unlimited,” leading others to worry that he could use that power to pardon anyone, including himself, even if charged in the investigation by Special Counsel Robert Mueller.
Bolton is reportedly looking into counter legal arguments that the president’s pardoning power “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.”
The arguments also allege that Trump’s pardon of the sheriff immunizes Arpaio against the consequences of his unlawful actions, contending that “the president cannot be allowed to weaponize the pardon power to circumvent the judiciary’s ability to enforce and protect constitutional rights.”
While ordinarily the arguments for denying the motion to dismiss charges would not stand much chance of success, there is a new practice that could change that.
According to LawNewz:
Several scholars, including 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.
In the meantime, Bolton has asked both Arpaio and the Justice Department to draft briefs on whether she should grant the motion 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,” LawNewz’ John Banzhaf noted.
But refusing to grant the motion may be the only way to challenge the president’s pardoning power in court.
In a scenario suggested by Constitutional scholar Erwin Chemerinsky, the judge could sentence Arpaio, who would then appeal, and the Ninth Circuit court could then affirm Bolton.
In this case, Bolton could cite a 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.”
In an event such as that, Trump and Arpaio would have little choice but to appeal to the U.S. Supreme Court.
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