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Judge orders gov't to explain why Arpaio conviction should be tossed out

Bolton suggests case should be dismissed after pardon, but conviction remain on the record

Saying the existing case law doesn't support erasing the conviction of ex-Sheriff Joe Arpaio, the federal judge who found him guilty of criminal contempt has asked government lawyers to explain why they are backing the former lawman's request to completely vacate the case after he was pardoned.

U.S. District Judge Susan Bolton on Thursday gave Justice Department attorneys a week to explain why they appear to agree with Arpaio that his case should be stricken from the record, saying that a motion filed earlier this week by the Trump administration "furnishes no authority conferring so broad a scope to orders of vacatur issued under similar circumstances."

Justice lawyers filed papers Monday with the judge, supporting a bid by defense attorneys to vacate Arpaio's criminal conviction in the wake of a pardon by President Donald Trump.

DOJ lawyers in Washington, D.C. filed a response to a move by Arpaio's defense team to toss out the conviction and end the case against the former lawman, writing that they agree that Trump's pardon made the criminal case moot.

"A pardon issued before entry of final judgment moots a criminal case because the defendant will face no consequences that result from the guilty verdict," the Justice lawyers said. "Accordingly, the government agrees that the Court should vacate all orders and dismiss the case as moot."

Bolton's order on Thursday indicated that she wasn't convinced.

"The cases that the government and defendant cite, however, speak only to the propriety of vacating any judgment entered prior to ordering dismissal," the judge said. "Judgment has not been entered here, thus suggesting that dismissal with prejudice is all that remains to be ordered."

"U.S. Supreme Court and Ninth Circuit case law suggest that a  presidential pardon leaves intact the recipient’s underlying record of conviction," Bolton said.

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The judge quoted several cases, among them:

  • "The granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is an executive action that mitigates or sets aside punishment for a crime." — Nixon v. United States
  • "Defendants convicted of federal crimes may seek collateral relief through a  presidential pardon. However, one who is pardoned is merely released from the disabilities attendant upon conviction and has his civil rights restored. He is not entitled to erasure of the record of his conviction." — United States v. Crowell
  • "A pardon in no way reverses the legal conclusion of the courts; it does not blot out guilt or expunge a judgment of conviction." — Hirschberg v. CFTC

The government's agreement with Arpaio's attorneys "does not sufficiently address this issue," Bolton said, giving them until September 21 to file a supplemental response.

Unconstitutional pardon?

A friend of the court brief, filed Monday by a civil-rights law firm, said the pardon was "unconstitutional" and that the conviction should stand.

"The president has pardoned Arpaio in a manner repugnant to our constitutional order, rewarding him for waging war on minority communities and for breaking the law repeatedly and willfully. The least this disgraced lawman should suffer is the stigma of conviction. The nation deserves for his conviction to stand," wrote attorneys for the MacArthur Justice Center, who said that the timing of the pardon was the result of "Arpaio's voluntary choices," and not was not solely the "unpredictable grace" maintained in filings by Arpaio and the DOJ.

Bolton warned the MacArthur lawyers that their brief was not properly formatted, giving them three days to fix the document.

Trump pardoned Arpaio late last month, allowing the former Maricopa sheriff to walk free despite facing sentencing for his conviction on criminal contempt charges in a racial profiling case.

Trump exercised his constitutional power to pardon Arpaio, the first pardon of his presidency, although he bypassed the regular process that requires a five-year waiting period and lengthy federal review.

Arpaio faced up to six month in prison after being convicted this summer by a federal judge. He lost a bid for a seventh term last November to Paul Penzone, a Democrat.

In July, Bolton found that Arpaio "willfully violated an order of the court," by disregarding another federal judge's order. In the 14-page decision, Bolton found that Arpaio and his staff showed a "flagrant disregard" for a court order to stop arresting people on the suspicion that they were unlawfully present in the United States.

Bolton canceled Arpaio's October 5 sentencing hearing after Trump's pardon, but asked for briefs from both sides of the case regarding Arpaio's motion to not merely curtail punishment but entirely toss out his conviction.

Bolton is now scheduled to hear oral arguments in the case on October 4.

"It is only fair that the court vacate its verdict and all other rulings in the case," Arpaio's lawyers said, arguing that because the pardon was issued before sentencing and prior to Arpaio exhausting any appeals in the case, that it should be erased from his record.

The U.S. Supreme Court has ruled (in Burdick v. United States) that a pardon "carries an imputation of guilt and acceptance of a confession of it."

Representatives of the American Civil Liberties Union declined to comment on the Justice Department filing Monday.

MacArthur Justice Center attorneys wrote in their amicus brief that Trump's pardon "is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights... the adoption of the Bill of Rights and the Fourteenth Amendment makes clear that the executive power, including the pardon power, cannot be exercised to disable the judicial enforcement of constitutional rights."

"The Arpaio pardon is only the president’s latest assault on the federal judiciary; a succession of statements by the president show an intent to undermine the constitutional function of the federal courts as a check against fundamental deprivations of liberty," the lawyers wrote.

"Even if the court were to find that the pardon is valid and erases the effects of the conviction, the conviction itself should stand. Shortly before the pardon, the White House asked Arpaio if he would accept a pardon, and he said that he would. Arpaio’s lawyer then insisted that the president issue the pardon before sentencing, which the president did. Arpaio now argues that the conviction should be vacated because he has no opportunity to appeal, but he created that scenario by saying he would accept a pardon and by insisting that it occur immediately. A party who voluntarily moots a case is not entitled to vacatur. If this case is moot, it is because of Arpaio’s voluntary choices," they said.

Arpaio continued to detain without legal basis

Another federal court judge had ordered Arpaio to stop the practice of arresting motorists solely on suspicion they might be in the country illegally, but Arpaio "announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise," Bolton ruled in convicting him.

The 85-year-old Arpaio was scheduled to be sentenced on Oct. 5 and faced a $1,000 fine and up to six months in jail. The tab for settlements and compliance efforts in civil suits over discrimination and racial profiling by the Maricopa County Sheriff's Office under Arpaio is still mounting for taxpayers, but has already hit nearly $70 million.

'America's Toughest sheriff' a convicted criminal

Arpaio promoted himself as "America's Toughest Sheriff" and built his reputation by tilting at the federal government, and engaging hard-nosed practices that made him a conservative darling. 

While his agency was being accused of civil rights violations, Arpaio also launched an attack against President Barack Obama, arguing that the president's birth certificate was fake. 

In December 2011, U.S. District Judge Murray Snow ruled that the Maricopa County Sheriff's Office violated the constitutional rights of people by detaining them without state charges, solely for violating civil immigration law.

Despite this ruling, Arpaio allowed his deputies to continue holding people for another 17 months despite Snow's "clear and definite" order forbidding it, said Bolton.

Arpaio argued during trial that he had the authority to detain people under Arizona's controversial immigration bill, SB 1070 and under a federal agreement, known as 287(g), that allowed local police agencies to enforce immigration law. 

In 2009, the federal government rescinded MCSO's 287(g) agreement. 

However, Bolton ruled that Snow's order was clear: Arpaio and his agency could not continue this practice.

"Judge Snow’s preliminary injunction spelled out that detaining those persons past the time sufficient to conduct a criminal investigation was a violation of their Fourth Amendment rights and that Defendant had to cease the practice immediately," she wrote. 

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Attorneys for Arpaio argued that the violations were the result of miscommunication, and that he had delegated enforcement of the order to his staff.

However, Bolton rejected this claim, saying that it was clear that Arpaio knew about the order, and that Arpaio said on "numerous occasions that he would continue to keep doing what he has been doing."

Arpaio "willfully violated the order by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed," Bolton wrote.

Before the pardon, his attorneys had said they would appeal.

Arpaio’s office had good reason to pull over motorists, defense attorney Dennis Wilenchik said.

“What the sheriff’s office interpreted that (court order) to mean, what everyone at the trial interpreted that to mean, is that you don’t stop someone just for being an illegal alien,” Wilenchik said.

“The confusion here is that’s not what the Maricopa County Sheriff’s Office was doing. Police generally stop someone for criminal violations. That’s exactly what the Maricopa County Sheriff’s Office was doing,” Wilenchik said.

Arpaio's trouble began in 2007, when the American Civil Liberties Union led a lawsuit against Arpaio, arguing that his agency racially profiled and illegally detained Latinos, violating their constitutional rights. 

Snow ruled against the agency in 2011, and then again in 2013. 

In May 2016, Snow once against ruled against Arpaio, finding that he and his top deputies repeatedly violated court orders, and charged Arpaio with civil contempt of court. 

"The Court finds that the Defendants have engaged in multiple acts of misconduct, dishonesty, and bad faith with respect to the Plaintiff class and the protection of its rights. They have demonstrated a persistent disregard for the orders of the Court, as well as an intention to violate and manipulate the laws and policies regulating their conduct," wrote Snow.

Passionate reactions to pardon

The pardon was quickly decried by Democrats, and several prominent Republicans.

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Calling Trump's move an "abuse," U.S. Rep. Raul Grijalva said it was "a full-throated endorsement of selected racial prosecution and bigotry."

"If you're wronged by law enforcement, this president doesn't have your back. Racist vigilantism has a champion in the White House," the Tucson Democrat said. "This sets a sad precedent that only further divides our nation."

U.S. Sen. Jeff Flake, a Republican who has feuded with Trump, said that "I would have preferred that the president honor the judicial process and let it take its course."

Trump's issuing a pardon "undermines his claim for the respect of rule of law," said U.S. Sen. John McCain.

"No one is above the law and the individuals entrusted with the privilege of being sowrn law officers should always seek to be above reproach in their commitment to fairly enforcing the laws they swore to uphold," he said. Arpaio "was found guilty of criminal contempt for continuing to illegally profile Latinos living in Arizona based on their perceived immigration status in violation of a judge's orders"

"The president has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions," McCain said.

The American Civil Liberties Union, which represented plaintiffs in the lawsuit that led to Arpaio's violation of the court order, denounced the president's pardon of the sheriff.

"With his pardon of Arpaio, Trump has chosen lawlessness over justice, division over unity, hurt over healing," said Cecillia Wang, the ACLU's deputy legal director.

"A resilient, strong community rose up against Arpaio's unlawful practices and their triumph over him can never be undone, by Trump or anyone else," said Alessandra Soler, executive director of the Arizona ACLU. "The racist practices that Arpaio implemented and Trump foolishly admires are illegal and immoral and no pardon will ever change that reality."

Arizona Gov. Doug Ducey supported the move.

"I believe Sheriff Joe deserves credit for helping to reduce crime in Maricopa County over his long career," the Republican governor said.

"The president clearly has pardoning powers ... and with this action, he has brought finality to this chapter in Arizona's history. Sheriff Joe is my friend, and now he, Ava and their family can move on and enjoy their retirement together," Ducey said.

Earlier in the week before issuing the pardon, Trump had flirted with an announcement, asking the crowd at his Phoenix rally to raucous cheers, "Do the people in this room like Sheriff Joe?" 

"Was Sheriff Joe convicted for doing his job? He should have a jury, but you know what, I'll make a prediction," he said.  

"I think he's going to be just fine, all right? But I won't do it tonight, because I don't want to cause any controversy. But Sheriff Joe can feel very good," he said.

In his Aug. 25 statement about the "full and unconditional pardon," the Republican president said, "throughout his time as sheriff, Arpaio continued his life's work protecting the public from the scourges of crime and illegal immigration," Trump said.

Arpaio in fact only seized on immigration as a political issue in 2005, during the controversial heyday of the Minutemen when a man held a group of immigrants at gunpoint in the desert.

"Sheriff Joe Arpaio is now 85 years old," Trump's announcement said, "and after more than 50 years of admirable service to our nation, he is a worthy candidate for a presidential pardon."

TucsonSentinel.com’s Paul Ingram contributed to this report.

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Paul Ingram/TucsonSentinel.com

Maricopa County Sheriff Joe Arpaio tells an Oro Valley audience about battling the federal government over immigration laws in the state in 2014.


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