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If Donald Trump forgives, should a court forget?
Joe Arpaio says yes, but the former lawman’s quest to erase his criminal contempt conviction will probably fail at the U.S. Court of Appeals for the Ninth Circuit, a former Justice Department attorney who handled pardons for the government and law professors who study clemency told Bloomberg Law.
After receiving a presidential pardon Aug. 25 following his July 31 conviction for violating a judicial order not to engage in racial profiling, the self-styled “America’s toughest sheriff” wants the appeals court to reverse an Oct. 19 order by the district court judge who convicted him but who won’t erase the verdict or throw out other orders despite Trump’s intervention.
But first there’s a question of whether the appeals court can even hear the merits of Arpaio’s claim, in light of an Oct. 30 order that said he must prove that the Ninth Circuit has jurisdiction.
Even if Arpaio can convince the Ninth Circuit to review the merits of his case, Federal District Judge Susan Bolton’s order against him likely will remain in place, the legal sources said. They noted “unusual” aspects of Arpaio’s case, including the timing of his pardon, its motivation, and the president who issued it.
Arpaio faces an “uphill battle” at the Ninth Circuit, Daniel T. Kobil told Bloomberg Law. Kobil teaches constitutional and criminal law at Capital University Law School in Columbus, Ohio, and has published several articles on clemency.
There’s no clear Supreme Court precedent on the question Arpaio wants the Ninth Circuit to take up on his appeal, but “if you take into account the disrespect Arpaio has already shown for the judiciary, then most judges won’t bend over backwards to give him the benefit a close call,” Kobil said. He was referring to Arpaio’s disobeying a judicial order that led to his conviction in the first place.
“I believe Arpaio will likely lose in the court of appeals, and the district court’s finding of guilt will remain valid,” attorney Margaret Love told Bloomberg Law. Love served as the Justice Department’s pardon attorney from 1990-97. Now in private practice, she represents individuals seeking clemency.
Rejecting the former Maricopa County sheriff’s appeal would respect the separation of powers as well as “the institutional integrity of the courts,” Love said. It’s also relevant that leaving the guilty verdict in place “would not disrespect the president’s pardon, which does not appear to have been granted on grounds of Arpaio’s innocence,” she said.
“I’d be surprised if the decision at the district court level was reversed,” Mark Osler told Bloomberg Law. Osler, a former federal prosecutor who has also written extensively about clemency, teaches at University of St. Thomas School of Law in Minneapolis.
Arpaio is asking for something unusual by having pardon mean expungement, and Arpaio’s “equities” don’t suggest this is a case where a court will make that extension for him, Osler said.
Though a pardon saves the recipient from punishment, it doesn’t “erase a judgment of conviction, or its underlying legal and factual findings,” Bolton said in her ruling against the former lawman.
Trump’s pardon of Arpaio and the current litigation surrounding it prompted lawyers who spoke to Bloomberg Law to draw comparisons to pardons by former President Bill Clinton, namely those of fugitive financier Marc Rich and corporate executive Archibald R. Schaffer III.
Arpaio’s case is “unusual in a number of ways,” Osler said. “One way is that in issuing the pardon, Trump embraced wrongful behavior condemned by the court,” he said, given that Trump pardoned Arpaio despite the ex-sheriff’s violation of a court order.
“Even when Clinton granted the Marc Rich pardon, he didn’t express approval of what Rich did,” Osler said. Rich was charged with evading $48 million in income taxes, the biggest tax-fraud indictment in history, prosecutors said at the time.
“Another unusual thing is issuing the pardon before Arpaio was sentenced,” Osler said in noting it’s not unprecedented, as Rich was pardoned while evading justice.
Love, the former U.S. pardon attorney, agreed that Arpaio’s case is unusual.
That’s because “so few full pardons have been granted in recent years while a criminal case was still pending,” she said.
Out of those few cases, only one other has attempted to erase a guilty verdict, she said, referring to Schaffer’s case. There, the U.S. Court of Appeals for the D.C. Circuit said all orders in the case should be erased after Schaffer’s pardon, which is the type of relief Arpaio unsuccessfully sought from Bolton.
Schaffer is different from Arpaio’s case, Bolton, a Clinton-appointee, said in her Oct. 19 ruling. It rejected Arpaio’s arguments that similarities between the cases should have led Bolton to rule in his favor.
“The legal question of Schaffer’s guilt was never reached,” she said, noting Clinton pardoned Schaffer after he was granted a new trial.
Because the issue on appeal in Schaffer involved the district court’s grant of a new trial, “no findings concerning Schaffer’s guilt or innocence had been made at the time he accepted the pardon,” Bolton said. “Thus, the D.C. Circuit’s seemingly broad order of vacatur in Schaffer actually asked very little of the district court, which was already poised to try Schaffer anew when the pardon issued,” she said.
“The same cannot be said” for Arpaio, Bolton said. Arpaio didn’t have an appeal pending, no new trial was ordered, and he was pardoned and accepted the pardon after he was convicted, she said.
Love thinks Bolton’s ruling will hold up on appeal. “Judge Bolton distinguished Schaffer in a way that I believe will likely be persuasive to the court of appeals,” she said.
Bolton “pointed out that in Schaffer the district court had never reached a conclusion on the question of Shaffer’s guilt, final or not, and in fact had gone so far as to enter a judgment of acquittal after the jury verdict of guilty,” Love said. Arpaio’s case is different, because here, “the court determined Arpaio’s guilt, even if its determination was not yet final, and that determination had not been challenged at the time the pardon was granted,” she said.
“Vacatur in this case would disrespect the position of the court, unlike the vacatur in Schaffer,” she said.
Kobil agreed that Schaffer presents a different situation from Arpaio’s case.
In Schaffer, the D.C. Circuit said it was “just and appropriate” to vacate the prior orders in his case, Kobil said. The Ninth Circuit is unlikely to feel the same way in this case, he said.
The Department of Justice, which supported Arpaio’s efforts to have Bolton erase his guilty verdict, didn’t respond to a request for comment.
Even if Bolton had failed to properly distinguish Schaffer, that case is from the D.C. Circuit, so it isn’t controlling authority on the Ninth Circuit anyway, Kobil observed.
No clear Supreme Court precedent exists on the merits of Arpaio’s claim, he noted.
Arpaio might find a more sympathetic audience at the Supreme Court than the Ninth Circuit, but it’s not clear the justices would be willing to “stick out their ideological necks” to take the case if it gets that far on appeal, he said.
“We now have the most conservative Supreme Court we’ve had in my lifetime,” Kobil, who has taught law at Capital University since 1987, said.
If the Supreme Court were to eventually take the case on its merits, it would likely be more for “ideological reasons” than to address a frequently arising issue, because pardons don’t arise frequently, he said.
Before Arpaio can even press his claim that Bolton should’ve erased his conviction, he has to address the Oct. 30 order that called into question whether the court can entertain Arpaio’s appeal at all.
“A review of the record suggests that this court may lack jurisdiction over the appeal because the district court’s order, entered on October 19, 2017, denying appellant’s motion for vacatur and dismissal with prejudice is not appealable as a final judgment or an order that comes within the collateral order doctrine,” the order from the clerk’s office said.
It gave Arpaio 21 days to “show cause” why the case shouldn’t be dismissed for lack of jurisdiction.
Arpaio’s lawyer, Jack Wilenchik of Wilenchik and Bartness, Phoenix, doesn’t seem worried about the order. It’s “just a standard order from the Court Clerk because we are appealing without a judgment,” Wilenchik told Bloomberg Law. “When the Clerk’s staff sees that there is no judgment in the case, the Clerk routinely sends out an Order like this,” he said.
“And it won’t be hard to explain why there is no judgment or sentencing to appeal from, as anyone has paid any attention to the case would know,” he said.
It “sets up a battle” over whether the court can get to the merits of the appeal, Julian, a litigator with the firm, said.
Yet the jurisdictional battle is one that Arpaio could win, Julian noted.
That’s because it’s “the end of the line” in terms of final judgments against the ex-sheriff, Julian said, given Trump’s pardon and Bolton’s order below.
But it’s possible the Ninth Circuit might be unsympathetic to Arpaio’s cause and leave him in no man’s land, he said.
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