A federal judge in Arizona previously ruled that Donald Trump’s pardon of former Sheriff Joe Arpaio was legally effective, despite claims from several left-wing public interest groups and law professors that the pardon was unlawful. We covered that ruling in Pardon of Sheriff Joe Arpaio upheld by court.

In that post, we noted that there was an open issue as to whether the pardon required the court to vacate all prior orders in the case, including the finding of criminal contempt, or merely hold off on sentencing:

That the court took “under advisement” the request to vacate all prior Orders in the case (as opposed to just the conviction) is not surprising. While the validity of the pardon was crystal clear, whether it requires vacating everything that has happened in the case so far is less clear (though I think it does).

Yesterday, the court resolved that open issue, ruling that the presidential pardon did not require vacating all prior orders in the case. Addressing specifically the judgment of conviction, the court wrote (pdf.)(full embed at bottom of post):

… 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. Defendant insists that “it is only fair that the Court vacate its verdict and all other rulings in this case.” (Mot. at 3.) Defendant relies on United States v. Schaffer, wherein an en banc D.C. Circuit vacated “all opinions, judgments, and verdicts” when a presidential pardon rendered the case moot on appeal. See 240 F.3d 35, 38 (D.C. Cir. 2001) (en banc)(per curiam). But Schaffer addressed a situation much different from the present one.  The legal question of Schaffer’s guilt was never reached. Id. at 38. This was due, not only to the pendency of an appeal when the pardon was issued, but also to the unique procedural posture of the case at that time. See id. Following Schaffer’s conviction, the district court ordered a new trial, from which the prosecutor appealed. Id. The appellate court reversed and remanded for sentencing; however, after Schaffer was sentenced, his petition for en banc review was granted and the sentencing order recalled. Id. “It was at that uncertain juncture that then President Clinton pardoned Schaffer, thus rendering the case moot.” Id.

The court concluded:

“The power to pardon is an executive prerogative of mercy, not of judicial recordkeeping.” United States v. Noonan, 906 F.2d 952, 955 (3d Cir. 1990). 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. See 67A C.J.S. Pardon & Parole § 33.

I think the court is wrong on this. The pardon vacated guilt, and to the extent there is a finding of criminal contempt, that must be vacated. It’s not record keeping – the record need not be expunged, but the finding should be vacated.

The same day the Order was entered Arpaio filed a Notice of Appeal. So this story is not over.


Joseph Arpaio – Order Denying Request to Vacate Criminal Contempt Finding by Legal Insurrection on Scribd