Former Arizona sheriff Joe Arpaio was exuberant last month when President Trump made the controversial decision to pardon him before he was sentenced in his criminal-contempt case.
But he may be in for a rude awakening. A presidential pardon does not mean a conviction automatically gets thrown out. A judge has to rule on that — and the one handling Arpaio’s federal court case has some hesitations.
In a filing Thursday, U.S. District Judge Susan R. Bolton wrote she wasn’t convinced that she could scrub the guilty verdict from Arpaio’s record. Instead, she signaled she was considering simply dropping the criminal case but letting the conviction stand — unless the government can persuade her otherwise.
Bolton found Arpaio, 85, guilty of criminal contempt of court in July after he deliberately defied another judge’s order to stop detaining people he suspected of being undocumented immigrants, a practice that violated the U.S. Constitution. Arpaio was scheduled to be sentenced in October, at which point Bolton would have entered a final judgment.
Trump’s pardon upended that. Because he made the decision before Arpaio was sentenced, no final judgment was ever rendered.
Following the pardon, Arpaio’s attorneys asked the judge to dismiss the case and vacate his conviction, which is protocol in such circumstances. Department of Justice attorneys joined them, writing in court papers this week that Trump’s pardon made the entire case moot because Arpaio “will face no consequences that result from the guilty verdict.”
But Bolton said it wasn’t that simple. Vacating the conviction didn’t seem to be an option because no judgment had been entered, she wrote in her order. On top of that, the order read, attorneys for Arpaio and the government didn’t cite any cases that supported their request to toss out the conviction, technically called a “motion for vacatur.”
In the judge’s words: “The Government appears to agree with the Defendant, but furnishes no authority conferring so broad a scope to orders of vacatur issued under similar circumstances.”
Bolton went on to quote from U.S. Supreme Court and appeals court cases suggesting that presidential pardons leave the recipient’s “underlying record of conviction” intact.
One case, Nixon v. United States (involving a judge named Walter Nixon, not President Richard Nixon) seemed to put the issue in plain terms. “The granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal,” the excerpt read, “it is an executive action that mitigates or sets aside punishment for a crime.”
Bolton said the government hadn’t sufficiently addressed that case and others. She gave the Department of Justice until Sept. 21 to file a response as to whether she should vacate Arpaio’s conviction.
Arpaio’s hardline stance on immigration and his harsh treatment of prisoners in Arizona’s Maricopa County made him a household name and earned him scores of fans on the political right, Trump among them.
In 2011, a federal judge found that he and his deputies had racially profiled Latino drivers in traffic stops, violating their constitutional rights, and ordered him to halt the practice. When he refused, the Department of Justice filed a contempt-of-court case against him. Arpaio consistently denied that he intentionally violated the court’s order.
Bolton was unsparing toward Arpaio when she handed down her guilty verdict after a bench trial held over the summer. Arpaio showed “flagrant disregard” for the court’s command and had attempted to pin blame on his deputies, she wrote.
“Not only did Defendant abdicate responsibility,” Bolton wrote, “he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.”
Arpaio was scheduled to be sentenced on Oct. 5 and faced up to six months in prison.
Trump announced his pardon in a Friday night statement on Aug. 25, released as Hurricane Harvey was about to make landfall in southeast Texas. The president made no mention of Arpaio’s crime but praised his military and law enforcement service.
“Throughout his time as Sheriff, Arpaio continued his life’s work of protecting the public from the scourges of crime and illegal immigration,” Trump said. “Sheriff Joe Arpaio is now eighty-five years old, and after more than fifty years of admirable service to our Nation, he is worthy candidate for a Presidential pardon.”
An array of civil rights organizations and legal scholars have jumped into Arpaio’s court case urging Bolton not to vacate the conviction. Several parties, including the Protect Democracy Project, have asked the judge to invalidate the pardon itself, arguing it prevented the court from protecting people’s constitutional rights. That would be an extraordinary act, as the president’s pardon power for federal offenses is explicitly granted in the Constitution.
Arpaio’s attorneys have opposed the motions.
“Our system of criminal justice is premised on lenity, and the defendant’s presumption of innocence,” they wrote in a filing Thursday. “A conviction that will never be confirmed by appeal, cannot stand.”
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