The Department of Justice has explained to a judge that her conviction of former Maricopa County Sheriff Joe Arpaio essentially was erased when President Trump pardoned the lawman.
In a filing this week, Justice Department lawyers argued that while there’s no precise precedent, similar convictions have been vacated.
According to the Washington Times, the DOJ lawyers asserted that because “no final judgment of conviction had been entered,” vacating the conviction “is appropriate given the presidential pardon.”
Susan Bolton, the judge in the case, had expressed doubts about what she should do, last week writing that it appears case law suggests “a presidential pardon leaves intact the recipient’s underlying record of conviction.”
Several lawsuits have been filed contending Arpaio’s pardon is unconstitutional.
The Washington Time reported that the parties – identified as “political opponents” – were urging a federal judge in Arizona to ignore the pardon and order Arpaio to jail.
Trump pardoned Arpaio Aug. 25 for a misdemeanor criminal conviction by Bolton, who ruled the former sheriff knowingly violated a federal judge’s order not to detain immigrants only because they lacked legal status.
One of the lawsuits against the pardon asserted the court could appoint a special prosecutor outside of the Justice Department to pursue a case against Arpaio, the Times said.
Such politicking in the federal court system, however, amounts to “yapping,” according to Arpaio lawyer Mark Goldman.
“It is hysterical yapping by people who are disrespecting the rule of law, disrespecting the president, disrespecting the Constitution and instead believe that their personal agenda and their hatred should trump all of those things,” Goldman told the newspaper.
He’s a longtime friend who was part of the former sheriff’s legal team.
The president’s power to pardon is considered fairly close to absolute, although historically pardons have been returned to the U.S. Justice Department due to incorrect dates or citations, or have been revoked because the recipient failed to abide by its conditions.
Bolton has refused to expunge Arpaio’s record, which is the normal procedure when a pardon has been issued.
She’s canceled a sentencing hearing that was set for Oct. 4. Instead of throwing the case out, she has asked for briefs regarding whether or not the case should continue.
The Times said the “anti-Arpaioans say the former sheriff’s transgressions were so bad, and Mr. Trump’s decision so unusual, that the pardon is unconstitutional.”
Arpaio already had asked that his conviction be overturned because of the judge’s egregious handling of the case. But his request hadn’t been considered yet when Trump, shortly after assuring supporters at a Phoenix rally that the sheriff would be “all right,” announced the pardon.
Arpaio’s lawyers say the conviction wasn’t final, and he never had a chance to appeal, so the case should be expunged entirely.
His critics contend the judge should go ahead with sentencing anyway.
Martin Redish, one of the “anti-Arpaioans,” said, “A dangerous precedent would be set for any future presidential pardon that immunizes law enforcement officers – or other government actors – from the penalties of contempt for violating judicial injunctions safeguarding constitutional rights.”
Erwin Chemerisnky, dean of the University of California, Berkeley School of Law, claimed the pardon “is void.”
However, Arpaio attorney Goldman argued there’s no precedent for a judge to ignore a presidential pardon, nor is there a precedent for third parties to intervene.
The Department of Justice says the sheriff’s lawyers are correct.
The Times reported Goldman said that by even allowing the former sheriff’s opponents to file briefs in the case, the judge was perpetuating a double standard.
The paper said she was “quick to rule out one of the Arpaio team’s filings because it was after the cutoff date, but hasn’t moved to strike or reject filings whose legal relevancy is questionable.”
The White House statement explaining Arpaio’s pardon said: “In 1992, the problems facing his community pulled Arpaio out of retirement to return to law enforcement. He ran and won a campaign to become sheriff of Maricopa County. Throughout his time as sheriff, Arpaio continued his life’s work of protecting the public from the scourges of crime and illegal immigration. Sheriff Joe Arpaio is now 85 years old, and after more than 50 years of admirable service to our nation, he is worthy candidate for a presidential pardon.”
Known as “America’s toughest sheriff” for his no-nonsense approach to law enforcement and his strong opposition to illegal immigration, Arpaio was the first to sue Obama over administrative orders in 2014 that allowed another 4 or 5 million illegal aliens to remain in the United States.
In a statement during the 2016 campaign, when Arpaio endorsed him, Trump said: “I have great respect for Sheriff Arpaio. We must restore law and order on the border and respect the men and women of our police forces. I thank him for his support of my policies and candidacy for president.”
Arpaio said: “Donald Trump is a leader. He produces results and is ready to get tough in order to protect American jobs and families. I have fought on the front lines to prevent illegal immigration.
“I know Donald Trump will stand with me and countless Americans to secure our border. I am proud to support him as the best candidate for president of the United States of America.”
Arpaio had been at odds with the Obama administration since its beginning, mostly over illegal immigration. The sheriff sued because of the impact illegal aliens have on the safety and security of his county’s citizens. Federal officials, in turn, had accused him of racial discrimination.
A split panel of federal judges said Arpaio didn’t have standing to sue, with the minority expressing outrage that the concerns of the sheriff of one of the nation’s largest counties, near the border with Mexico, would be dismissed.
His unusual approach to law enforcement earned him repeated election victories.
He established chain gangs for inmates to contribute thousands of dollars of free labor to communities, painting over graffiti and cleaning streets. He banned smoking, coffee, movies, pornographic magazines and unrestricted TV in jails. His costs per meal for inmates ran between 15 cents and 40 cents. He provided pink underwear for inmates to wear, after learning that inmates were stealing white jailhouse boxers.
He also posted mugshots online to serve as a deterrent, and he was behind the only official law enforcement investigation of Barack Obama’s birth certificate. His investigators concluded that the birth certificate Obama presented at the White House as an official government document almost certainly is a forgery.