Saying the president can’t erase facts, a federal judge on Thursday rejected a bid by former Maricopa County Sheriff Joe Arpaio to have all record of his criminal conviction wiped out.
Susan Bolton said she already dismissed the criminal contempt case against Arpaio following the decision by President Trump to issue a pardon. That saved the former sheriff, who had been found guilty, from the possibility of going to jail for up to six months.
But Bolton rebuffed Arpaio’s claim that the pardon also entitled him to have the entire conviction erased.
“The power to pardon is an executive prerogative of mercy, not of judicial record-keeping,” Bolton wrote, quoting earlier court precedent.
She said the pardon spared Arpaio from any punishment.
“It did not, however, revise the historical facts of this case,” she said.
Arpaio, however, is not willing to simply enjoy his freedom.
“It’s not going to be dropped,” he told Capitol Media Services.
Jack Wilenchik, one of his attorneys, said the relief the sheriff is seeking is important.
He said Arpaio intended to appeal his conviction, if for no other reason than Bolton had said he was not entitled to a jury trial. Wilenchik said he believes Arpaio would have won.
But now, with the pardon, there’s no opportunity to appeal, meaning the record of the conviction remains. And that, he said would be something that could be used against the former sheriff in any future criminal or civil case.
The conviction stems from the years’ old case filed against Arpaio and the department he led, accusing the agency of having policies of stopping motorists who look like they might be in the country illegally, whether or not they had violated any state laws. Deputies then would hand the people over to federal immigration officials.
U.S. District Judge Murray Snow found Arpaio and the department guilty of illegal racial profiling and he ordered it to stop. Snow later concluded the department of violating his orders and referred Arpaio, two aides and a former attorney for charges of criminal contempt.
The Department of Justice, then under President Obama, decided to pursue only Arpaio. And Bolton, who handled that case, used his own words and press releases to show he intentionally ignored Snow’s orders.
But before he could be sentenced, Trump interceded. And Bolton concluded that ended the case.
Wilenchik, however, said that’s not enough.
He said the conviction should be nullified. And Wilenchik said Bolton is misstating his arguments in asking that any evidence of the case against Arpaio be wiped out.
“We’re not asking to undo facts,” he said.
He said Arpaio isn’t asking for his record to be expunged and there is no such thing in federal law.
What Wilenchik said he does want is a recognition that the case is now legally moot. He said it’s no different than if someone dies before sentencing or having a chance to appeal.
“The whole case gets undone,” he said, with the conviction nullified.
But Bolton said that’s not the way things work. She said the right of the president to pardon the former sheriff is different — and separate from — what actually occurred in court.
More to the point, she said what Arpaio wants ignores the legal nature of a pardon.
First, she said, it must be accepted. At that point, Bolton wrote, the defendant is no longer subject to punishment and all of his or her civil rights are restored.
“It does not erase a judgment of conviction, or its underlying legal and factual findings,” Bolton said. In fact, the judge said there is case law showing that a pardon carries an imputation of guilt — and that acceptance is “a confession of it.”
In this case, Bolton said, Trump issued the pardon and Arpaio accepted it. And as she reads the law, that ends the case, but does not entitle the former sheriff to have his underlying conviction wiped out.
That conviction apparently has not dimmed the former sheriff’s political pull. On Thursday, when contacted by Capitol Media Services, he was in California, campaigning on behalf of congressional candidate Omar Navarro who hopes to unseat incumbent Democrat Maxine Waters.