Judge to Arpaio: You're off the hook -- but still guilty

“The power to pardon is an executive prerogative of mercy,” Judge Susan Bolton writes, “not of judicial recordkeeping.” In that ruling, Bolton denied a request from Joe Arpaio to have his contempt conviction stricken from his record, as well as other orders arising from his case. Arpaio will not have to serve any sentence for his conviction after accepting a pardon from Donald Trump, but the conviction will stand:

A federal judge has ruled that President Donald Trump’s pardon of former Arizona Sheriff Joe Arpaio ends his prosecution for criminal contempt of court, but does not wipe out the guilty verdict she returned or any other rulings in the case.

In her order Thursday, Phoenix-based U.S. District Court Judge Susan Bolton rejected arguments from Arpaio’s lawyers and Justice Department prosecutors that the longtime Maricopa County sheriff was entitled to have all rulings in the case vacated, including the guilty verdict the judge delivered in July after a five-day trial.

“The power to pardon is an executive prerogative of mercy, not of judicial recordkeeping,” Bolton wrote, quoting an appeals court ruling. “To vacate all rulings in this case would run afoul of this important distinction. The Court found Defendant guilty of criminal contempt. The President issued the pardon. Defendant accepted. The pardon undoubtedly spared Defendant from any punishment that might otherwise have been imposed. It did not, however, ‘revise the historical facts’ of this case.”

The fact that the “defendant accepted” a pardon at all implies guilt, Bolton writes, and lists the significant precedents for that interpretation. Had Arpaio wanted to establish his innocence, he should have opted for appeal instead, or at least waited for sentencing:

A presidential pardon must be accepted to be effective. Burdick v. United States, 236 U.S. 79, 94 (1915). Once accepted, a full and absolute pardon “releases the wrongdoer from punishment and restores the offender’s civil rights without qualification.” Absolute Pardon, Black’s Law Dictionary (10th ed. 2014); accord United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (“A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”). It does not erase a judgment of conviction, or its underlying legal and factual findings. United States v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004); see also In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994) (noting that “a pardon does not blot out guilt or expunge a judgment of conviction”).1 Indeed, a pardon “carries an imputation of guilt; acceptance a confession of it.” Burdick, 236 U.S. at 94.

Defendant accepted the pardon before a judgment of conviction was entered.

Arpaio’s legal team had argued that another precedent, US v Schaffer, established that a pardon results in undoing the conviction and orders of the case. Bolton points out that at the time of Bill Clinton’s pardon of Shaffer, courts had vacated the trial and the sentencing at various points, and that Shaffer’s status was therefore “the same situation as if no trial had ever taken place.” One could still impute that Shaffer had tacitly admitted guilt by accepting the pardon — a clemency action and not an exoneration — but there was no valid conviction to strike from the record.

The imputation-of-guilt quality of a pardon came up during the 2016 election, at least speculatively. Some wondered whether Barack Obama would shortcut a potential prosecution of Hillary Clinton by pardoning her, which would have removed all potential of having the Democratic Party’s nominee in court rather than on the hustings. Politically and legally, though, accepting the pardon would amount to a confession of guilt, opting out of a defense against the charges in favor of protection against punishment. Hillary would have been roasted for accepting a pardon, although in the end it appears everyone who counted knew she would have no need for one anyway.

This seemingly would have little consequence for Arpaio, as a pardon also carries with it a full restoration of civil rights. However, Arpaio has suggested that he may run for office again, and wanted the judgments off the record to keep opponents from citing them in a campaign. That would have happened even if Bolton had ruled the other way, though, but it does make it more official to have them on the record. Arpaio could appeal this ruling, but the appellate courts are likely to ask him why he didn’t try doing that in the first place rather than accept the pardon.