A court hearing Wednesday in Phoenix over former Sheriff Joe Arpaio’s pardon isn’t expected to lead a judge to undo his clemency, even though some critics want it declared invalid and for the retired lawman to be sentenced.
Instead, it will likely focus on Arpaio’s bid to throw out a blistering ruling that explains the reasoning behind his guilty verdict and could create an opening for outside legal advocacy groups to try to shape the legal interpretations of presidential pardon powers.
The hearing comes five weeks ago after President Donald Trump pardoned Arpaio’s conviction for disobeying a 2011 court order in a racial profiling case to stop his traffic patrols that targeted immigrants. U.S. Judge Susan Bolton, who found Arpaio guilty of the misdemeanor, has said case law suggests a pardon doesn’t erase a recipient’s underlying record of conviction and instead is aimed at lessening or canceling punishment.
Margaret Love, who served as U.S. Pardon Attorney between 1990 and 1997, said she doesn’t expect the pardon to be overturned. “The idea that a court could set aside a pardon is wrongheaded,” Love said.
Three outside legal advocacy groups are requesting that the pardon be declared invalid or unconstitutional, arguing that letting it stand would encourage government officials to flout future court orders on matters involving people’s constitutional rights.
Lawyers who defeated Arpaio in the profiling case say the decision explaining the guilty verdict should remain intact to serve as a rebuke of the sheriff’s actions and as a deterrent to other politicians who might want to disobey a judge’s orders.
And more than 30 Democrats in Congress have asked Bolton to declare the pardon invalid and move forward with sentencing, saying the clemency is an encroachment by Trump on the power and independence of the courts.
Arpaio’s attorneys want the judge to formally dismiss Arpaio’s case and throw out the ruling that explains the guilty verdict. They say their requests are aimed at clearing Arpaio’s name and barring the ruling’s use in future court cases as an example of a prior bad act.
Arpaio attorney Jack Wilenchik said efforts by outside advocacy groups were a politically motivated waste of time. “I think the judge appreciates that she has to honor a pardon,” Wilenchik said.
Daniel Kobil, a professor at Capital University Law School in Columbus, Ohio, called the requests to declare the pardon invalid to be “the longest of long shots” and said the courts are reluctant to limit a president’s power to pardon.
Kobil believes the litigation over Arpaio’s pardon centers largely on an effort to push back against the presidential pardon. “This is really about trying to put a marker in for a particularly egregious use of pardon power,” Kobil said. “It’s divisive and questionable as a matter of public policy.”
P.S. Ruckman Jr., who edits a blog about presidential pardons, also believes the litigation is about shaping the courts’ interpretation of the pardon. “Arpaio is just the means to an end,” Ruckman said.
Ruckman said the arguments to overturn Arpaio’s pardon are weak but added that the courts haven’t had a highly relevant pardon case since the early 1970s.
Brad Miller, a Washington lawyer who represents the congressional Democrats who oppose the pardon, said the key question for Bolton to consider is whether the pardon intrudes on the constitutional rights of Latinos in the racial profiling case when he violated the 2011 court order.
“It’s about separation of powers — to make sure there isn’t too much of concentration of powers in the executive branch,” Miller said.
Since the pardon, Arpaio has said he did nothing wrong, criticized Bolton as biased and called the offense behind his conviction a “petty crime.” Arpaio, defeated last year in the same election that sent Trump to the White House, is now talking about getting back into politics.