The Trump Administration notified a federal appeals court Tuesday that it continues to support the plea of a controversial former Arizona sheriff that he should have his criminal contempt-of-court conviction erased. It will argue, as it did previously in a federal trial court, that President Trump’s pardon in August of ex-Sheriff Joe Arpaio should have not only overturned his conviction, but also vacated the finding of contempt and all other orders issued in that case.
Arpaio, who was Maricopa County sheriff for 23 years, has long been at the center of continuing controversy over how undocumented immigrants living in the U.S. should be treated by law enforcement officials. Immigrants rights groups repeatedly accused him of roundup up immigrants and detaining them, merely on suspicious that they were in the country illegally but without filing any state criminal charges against them. Based on similar complaints, the Obama Administration withdrew his authority to assist in enforcing federal immigration laws.
Last July, U.S. District Judge Susan R. Bolton of Phoenix convicted Arpaio of criminal contempt for repeatedly refusing to obey another federal judge’s orders to stop making illegal arrests, when no state crimes were charged.
Before Judge Bolton could impose a sentence, President Trump on August 25 granted the former sheriff a “full and unconditional pardon” for the contempt conviction and for any other crimes that might be charged against him for his conduct in reaction to the judge’s orders.
Lawyers for Arpaio then formally asked Judge Bolton not only to wipe out the contempt conviction, but also to erase the record of it from court files. The Trump Administration joined in supporting that request, arguing that, since Arpaio had not yet been sentences and since he now had the benefit of a pardon, the contempt case against him had lost all legal significance, and thus should be vacated.
The judge declined to do so in October, leading Arpaio’s lawyers to appeal that refusal to the U.S. Court of Appeals for the Ninth Circuit. Last month, a three-judge panel of that court asked the Justice Department whether it would take part in the case and file a brief defending Judge Bolton’s refusal to erase the conviction. (The U.S. government was, legally, the entity that had brought the criminal contempt charge, so it is on the other side in the case before the Ninth Circuit Court. The Justice Department has the option of choosing not to defend court orders with which it disagrees.)
In a response, filed Wednesday, Department lawyers said the federal government “does not intend to defend the district court’s order,” but will take part in the case “to argue, as it did in the district court, that the motion to vacate should have been granted.” The filing said the government took no position on whether the appeals court should name an independent attorney to defend Judge Bolton’s action.
Arpaio and several advocacy groups taking part in the case may submit replies to the government filing a week from now.
