Justice Department lawyers said in a court filing Thursday the case against Joe Arpaio should be dismissed and the guilty verdict vacated, but not completely purged.
The filing is in response to an order last week by U.S. District Court Judge Susan Bolton, who presided over the lawman’s criminal contempt of court trial and found him guilty on that charge.
Since then, President Donald Trump pardoned the six-term former Maricopa County sheriff, setting off a flurry of filed legal opinions on what Bolton should do about it.
Lawyers for the U.S. Attorney’s Office, who successfully prosecuted Arpaio, did not previously explain the legal basis for tossing the entire case, including the verdict.
Thursday they did, answering two questions Bolton posed:
What legal basis supports vacating the entire case, rather than simply dismissing it?
What effect does case law have that indicates a presidential pardon does not erase the conviction?
At essence, Bolton is trying to figure out whether the pardon only renders moot the possible punishment, as Arpaio’s critics suggest, or if it also invalidates the existence of a conviction, as his attorneys, and the government, argue.
Government attorneys cited two federal appeals cases: a 2001 case from Washington, D.C., and a 1993 case from the Ninth Circuit, which includes Arizona.
In the 2001 case, judges vacated the case of a man who got a presidential pardon before the trial had determined his guilt or innocence. In the older case, the defendant had been found guilty, but took his own life before he could be sentenced. The court ruled the case moot and order that judgment in the case be vacated.
In her order, Bolton cited cases that, DOJ attorneys noted, “state the settled view that, when a final conviction has been established, a presidential pardon does not alter the historical fact of conviction.”
But they went on to reason that those cases do not preclude vacating the case against Arpaio, because “none dealt with a pardon that was issued prior to a final conviction.”
Federal prosecutors went on to say that even vacating the case does not wipe clean Arpaio’s record, as his fiercest critics fear it would.
Vacating the case, “does not alter the historical record nor entitle a defendant to expunge, alter, or seal the court record,” the DOJ lawyers argued. “Expungement is an extraordinary measure appropriate ‘only in extreme circumstances.’ In this case, no final judgment of conviction has been entered, and while vacatur is appropriate given the presidential pardon, the court is not required to alter or expunge the underlying record.”
“The defendant’s verdict should be vacated and the case dismissed as moot. No
further action is requested or required, and the presidential pardon does not require the alteration, destruction, erasure, expungement, or sealing of the record in this case,” federal prosecutors concluded.
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It remains unclear if Bolton’s eventual ruling on the argument will usher the final word in the long-running saga of Arpaio’s legal battles.
His legal team has vowed to appeal any decision that doesn’t fully clear his name. Outside attorneys, critical of Arpaio, are asking Bolton to let them argue for preserving the criminal conviction in the record.
Nothing requires Bolton to act on those requests.
Bolton has scheduled a hearing for October 4 to resolve the Arpaio case, but she could still rule from the bench without another proceeding, as she did when she found him guilty.