Arpaio Can’t Erase Guilty Verdict; Will Appeal

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By Jordan S. Rubin

Joe Arpaio, the former Arizona lawman who broke the law but was pardoned by President Trump, can’t erase his guilty verdict from the record books, a federal district court held Oct. 19 ( USA v. Arpaio , D. Ariz., No. 2:16-cr-01012, 10/19/17 ).

Though a pardon saves the recipient from punishment, it doesn’t “erase a judgment of conviction, or its underlying legal and factual findings,” U.S. District Court Judge Susan R. Bolton said. “Indeed, a pardon ‘carries an imputation of guilt,’” she said, quoting a 1915 Supreme Court case.

Arpaio’s criminal contempt case stemmed from his non-compliance with a court order demanding that he not engage in racial profiling.

Judge Bolton found Arpaio guilty July 31 and set a sentencing date of Oct 5. But Trump pardoned Arpaio Aug. 25 for his conviction in that case and “any other offenses … that might arise, or be charged.”

Arpaio then sought to vacate “all orders” in his case, including the guilty verdict.

Bolton demurred. “The power to pardon is an executive prerogative of mercy, not of judicial record keeping,” the Arizona judge said, quoting a Third Circuit case.

Arpaio’s lawyers quickly filed a notice of appeal to the Ninth Circuit, the federal appeals court that covers Arizona. Arpaio’s opening brief in the Ninth Circuit litigation is due Jan. 18, 2018, his lawyer Jack Wilenchik of Wilenchik & Bartness PC, Phoenix, told Bloomberg Law.

Arpaio ‘Won’t Escape the Stigma’

Outside groups who opposed Arpaio’s motion praised Bolton’s decision.

Judge Bolton’s ruling “is correct and well-justified on the law,” ACLU Deputy Legal director Cecillia Wang told Bloomberg Law. Wang was involved in the underlying litigation that ultimately led to Arpaio’s conviction and, with others, she filed an amicus brief against Arpaio here.

“Under Judge Bolton’s order, Arpaio evades punishment, thanks to an unconstitutional pardon, but he won’t escape the stigma of being found guilty of a federal crime,” David M. Shapiro told Bloomberg Law. Shapiro is the Director of Appellate Litigation at the Roderick and Solange MacArthur Justice Center at Northwestern Pritzker School of Law in Chicago, which filed an amicus brief opposing Arpaio’s motion.

Arpaio’s “racist policies are an insult to the Constitution,” Shapiro said. “The nation deserved for the guilty verdict to stand,” he said.

“This case represents an important opportunity to prevent the President’s abuse of the pardon power and vindicate the authority of the judicial system to protect the constitutional rights of individuals,” Shanna Cleveland told Bloomberg Law on behalf of Free Speech For People and Coalition to Preserve, Protect and Defend, groups that both opposed Arpaio’s motion. Cleveland is senior counsel at the free speech group.

“We plan to continue working with others to ensure that the constitutional issues we raised are considered by the Ninth Circuit, and we’ll be determining the best legal avenues for doing so in the coming days,” she said.

“The Department of Justice and former sheriff Arpaio overreached in asking the Court to erase history, and we are pleased the Court rejected that request,” Jean-Jacques “J” Cabou of Perkins Coie LLP, Phoenix, told Bloomberg Law. Cabou and others represented the non-profit Protect Democracy Project Incorporated as amicus curiae against Arpaio.

No ‘Genuine Basis’ for Ruling

The Department of Justice declined to comment on the case, spokesperson Nicole Navas Oxman told Bloomberg Law.

But Arpaio’s lawyer, Wilenchik, was willing to express his clear disagreement with Bolton’s ruling.

“In general, the district court’s ruling fails to supply any genuine basis to hold that the rule of automatic vacatur does not apply,” Wilenchik said.

Bolton’s decision “fails to distinguish the Schaffer case in any meaningful way, and it also mischaracterizes the facts of that case,” he said, referring to United States v. Schaffer, a case where the D.C. Circuit vacated “all opinions, judgments, and verdicts” after a pardon. Procedural differences between Schaffer and Arpaio’s case meant the former sheriff couldn’t rely on that case to win here, Bolton said.

Schaffer involved a corporate executive pardoned by former President Bill Clinton.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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