Jack Wilenchik, an attorney for Arpaio, said the former sheriff of Maricopa County, Ariz., feels it important that the guilty finding in his case be vacated, even if the pardon prevents him from ever serving time.
“It’s a matter of clearing his name, and removing any legal effects of the conviction,” Wilenchik said.
Bolton scheduled a hearing on the matter for October 4. The Justice Department — which prosecuted Arpaio and presumably could argue against his request — declined to comment for this story.
Bolton found Arpaio guilty in July of criminal contempt for ignoring another judge’s order to stop detaining people because he merely suspected them of being undocumented immigrants. He had yet to be sentenced. The case was closely watched, as Arpaio had become a household name for his extreme stance on illegal immigration.
Arpaio also was a noted ally of President Trump, who asked his attorney general as the case headed toward trial whether it would be possible to drop the matter. Trump was advised that would be inappropriate, and he instead opted to pardon Arpaio. Though that was certainly within Trump’s power, civil liberties groups and even some Republicans criticized the move — which came as a devastating hurricane was closing in on Texas.
The vast majority of presidential pardons are issued long after people are convicted and sentenced. That is because pardons generally serve to forgive people, rather than to erase what they have done. The Justice Department notes in guidance on its website that pardons do not remove convictions from a person’s criminal record.
“Instead, both the federal conviction as well as the pardon would both appear on your record,” the guidance says. “However, a pardon will facilitate removal of legal disabilities imposed because of the conviction, and should lessen to some extent the stigma arising from the conviction.”
Margaret Love, who served as the U.S. Pardon Attorney between 1990 and 1997 and specializes in clemency cases, said a pardon ordinarily does not expunge the court record, but Arpaio’s case is atypical because a final judgment had not yet been imposed. That might make it akin to a case involving Archibald R. Schaffer III, who was pardoned by President Clinton in 2000 amid intense legal wrangling over his conviction for violating the anti-bribery provision of the Meat Inspection Act.
A federal appeals court in that case wrote that while a pardon on its own did not render Schaffer innocent, the case had become moot, and thus all the lower court judgment’s should be vacated. Arpaio’s attorneys have argued that Bolton should apply the same reasoning.
“Because the President issued a pardon before sentencing and judgment — and clearly, before the conclusion of any appeals — the Court is obligated to vacate its verdict and all other orders in this matter, and to dismiss the case with prejudice,” Arpaio’s attorneys wrote. “Because Defendant will never have the benefit or opportunity to seek a reversal of the court’s verdict through appeal (and a retrial by jury), it is only fair that the Court vacate its verdict and all other rulings in the case.”
Wilenchik said there was a practical reason, too, that Bolton should undo the conviction: if she does not, Arpaio intends to continue pursuing appeals in his case “That’s a lot more time and money,” he said.
If Bolton undoes the conviction, though, Wilenchik said that will likely mark the end of the case.