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In Arpaio Conviction Case, the DOJ and Judge Face Off

Inflatable Joe. Photo credit: Frontera Fund

Sheriff Joe Arpaio’s criminal conviction case is starting to feel like a high stakes poker game. On September 21, the Department of Justice submitted its arguments for why the judge should throw out the pardoned sheriff’s conviction – and it became clear that they’re bluffing with a really bad legal hand.

To get a sense of what’s unfolding in this unprecedented case, let’s briefly go back to the start of the action.

In July, U.S. District Judge Susan Bolton convicted Arpaio of criminal contempt of court for blatantly disobeying the court’s orders to stop racially profiling. In August, the President played (excuse the pun) a Trump card: He pardoned the sheriff, months before he was scheduled to be sentenced.

Now, the crucial question is whether Trump’s pardon simply means that possible punishment for the sheriff is off the table, or if Arpaio’s conviction will be thrown out entirely.

Of course, the Department of Justice thinks the case should be tossed aside. On September 11, the DOJ filed a petition telling Bolton to dismiss the case. “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 petition read. “Accordingly, the government agrees the Court should vacate all orders and dismiss the case as moot.”

But Bolton decided to see the DOJ’s bet and raise them. She filed a petition stating that because a pardon implies the person was guilty in the first place, “it does not obliterate or erase that guilt” and “generally does not entitle the recipient to have its criminal history record expunged,” according to U.S. Supreme Court and Ninth District Court cases.

The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787.

Bolton told the DOJ it did not provide enough evidence from previous legal cases to support their claim that she should dismiss the case. She asked them to submit that evidence by September 21.

They did, and their response is revealing.

Their petition acknowledges that “There is no case law directly addressing whether [throwing out the case] is appropriate under the circumstances at issue here – when a presidential pardon moots a criminal prosecution after a finding of guilt but before a judgment of conviction is entered.”

“But,” they write, “D.C. Circuit precedent under similar circumstances strongly counsels for vacatur.” (Vacatur, or vacating a case, is legalese for canceling a case.)

What are those strong and similar circumstances? In one case, a meat inspector was convicted of bribery and appealed the case multiple times, citing insufficient evidence. Then President Bill Clinton pardoned him, and both parties were quite satisfied to let the case go. In the other situation, the case was thrown out because the guilty man committed suicide.

By using these two weak cases to back up their argument, the DOJ is basically holding a two of clubs and a three of hearts and calling it a pair of aces.

Unfortunately, as we know in today’s politics, playing a really bad hand doesn’t mean you’re going to lose.

Meanwhile, several legal groups are urging Bolton not just to uphold Arpaio’s conviction but to deem Trump’s pardon unconstitutional.

“If the President may employ his pardon power to relieve government officers of accountability and risk of penalty for defying injunctions imposed to enforce constitutional rights,” wrote the Coalition to Preserve Protect and Defend, “…The result would be an executive branch freed from the judicial scrutiny required to assure compliance with the dictates of the Bill of Rights and other constitutional safeguards.”

Another group of legal scholars and lawyers wrote, “No President till now has proclaimed that a public official who violated the Constitution and flouted court orders was ‘doing his job.’ The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787.”

So far, Bolton is keeping her cards close. After the pardon, she canceled the sentencing hearing that was supposed to be held October 5. She has scheduled oral arguments regarding the case to be heard on October 4. However, she could make a decision before then.

Lacey and Larkin Frontera Fund will keep you updated on this developing news.