‘Prosecuting’ Trump Over a Pardon

The Ninth Circuit again decides it can hijack presidential power.


Security guards stand in front of the Ninth U.S. Circuit Court of Appeals in San Francisco, June 12, 2017.
Security guards stand in front of the Ninth U.S. Circuit Court of Appeals in San Francisco, June 12, 2017. PHOTO: JUSTIN SULLIVAN/GETTY IMAGES

Progressives claim to fear a lawless President Trump, but in their panicky response many are resorting to lawlessness themselves. Behold the Ninth Circuit Court of Appeals’ appointment this week of a “special prosecutor” to challenge the President’s pardon power.

Last summer Mr. Trump pardoned deposed Maricopa County Sheriff Joe Arpaio, who had been convicted of criminal contempt for defying a federal judge’s orders. The President’s power to pardon the sheriff is indisputable under Article II of the Constitution, even if the pardon was unwise for inviting resistance to judicial rulings. And now two Ninth Circuit judges are matching the sheriff’s contempt for the law.

Federal judge Susan Bolton last year granted Mr. Arpaio’s pardon but declined to vacate his conviction. Mr. Arpaio asked the Ninth Circuit to wipe clean his record, and the Justice Department supported his motion. 

Liberal groups represented by Democratic law firm Perkins Coie argued that the pardon violates the Constitution’s due process clause and urged the Ninth Circuit to appoint a special prosecutor under Rule 42 of the Federal Rules of Criminal Procedure. This judicial bylaw lets courts appoint a private attorney if the government declines or is ineligible to prosecute contempt charges. As the Supreme Court held in Young v. United States ex rel. Vuitton et Fils S. A.. (1987), the special prosecutor’s duty is “solely to pursue the public interest in vindication of the court’s authority.”

But the Justice Department successfully prosecuted Mr. Arpaio, and there’s no need for another investigation simply because the President issued a pardon. The court’s authority was vindicated by the conviction.

Ninth Circuit judges William Fletcher and Wallace Tashima acknowledge that there is no precedent for the appointment of a special prosecutor in this instance, but they say the court needs “the benefit of full briefing and argument.” In other words, the judges want a pretext to review the constitutionality of President Trump’s pardon.

As Judge Richard Tallman noted in dissent, “The United States has told us it is not abdicating its responsibility to represent the Government’s interest in this appeal. Nor do amici attempt to hide the true purpose of their request—to challenge the underlying pardon.”

So now we have judges prosecuting the President’s lawful exercise of executive power and discretion. This violates the separation of powers. Court-appointed special masters charged with enforcing consent decrees are notorious for abusing their mandates, which is an even bigger danger with a special prosecutor who would enjoy investigative powers.

As Judge Tallman warned, “I fear the majority’s decision will be viewed as judicial imprimatur of the special prosecutor to make inappropriate, unrelated, and undoubtedly political attacks on presidential authority.” Count on it, judge. Under the majority’s logic, judges could revive prosecutions dropped by the Justice Department or initiate roving investigations of their own.

Democrats complain about an imperial Presidency, which hasn’t materialized. The bigger danger comes from liberal judges wresting powers that properly belong to the legislative and executive branches.

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