Arizona judge considers ways to legally out-maneuver Trump's pardon of Joe Arpaio
Former Sheriff Joe Arpaio campaigning for Donald Trump in Iowa, screengrab from ABC 15 in Arizona.

An Arizona District Court judge is weighing arguments against throwing out charges against Arizona's Sheriff Joe Arpaio in spite of President Donald Trump's pardon.


According to LawNewz.com, District Court Judge Susan Bolton has yet to grant a motion by Arpaio's attorneys to have all charges against him dismissed in the wake of the presidential pardon.

In fact, she is reviewing arguments filed with her against dismissing the charges, said John Banzhaf at LawNewz, who quoted one document that said, "The president can’t use the pardon power to immunize lawless officials from consequences for violating people’s constitutional rights.”

Arguments lodged by Arpaio's attorneys allege that "(t)he president’s pardon moots the case, and it warrants an automatic vacatur of all opinions, judgments, and verdicts related to the criminal charge.”

Attorney General Jeff Sessions' Justice Department has endorsed the argument of Arpaio's team and said, "the government agrees that the Court should vacate all orders and dismiss the case as moot.”

Some have argued that the chief executive's pardon power is "unlimited" and might include the ability to pardon anyone charged in, for example, the Mueller probe -- up to and including himself.

However, Judge Bolton is reportedly examining historical jurisprudence on the matter, including arguments that the president's pardon powers are 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, the arguments say, a president cannot use his pardon power to undercut the Courts' attempts to to protect people from violations of their rights, including the right of Due Process. The president's pardon, if granted, immunizes Apraio against the consequences of his unlawful acts and their impact on the rights of others.

Therefore, "the president cannot be allowed to weaponize the pardon power to circumvent the judiciary’s ability to enforce and protect constitutional rights,” say arguments against dropping all charges against Arpaio.

Bolton has asked both Arpaio and the Justice Department to draft briefs in favor of the pardon, which LawNewz argued defies 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, Bolton's refusal to grant the motion dropping charges against Arpaio may be the only legal challenge the pardon could ever see. Constitutional scholar Erwin Chemerinsky, said LawNewz, 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, Banzhaf wrote, 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.”

If the 9th Circuit upheld Bolton's decision to sentence Arpaio in spite of the pardon, Trump and Arpaio would have no recourse but to appeal to the U.S. Supreme Court. The maneuvering by Judge Bolton would be highly unusual, but Banzhaf noted, many judges are forging into new waters to beat back against what they see as Trump's attacks on the courts and the rule of law.