Joe Arpaio has not set foot in a courtroom since July, has not sat behind his old, famous desk at the Maricopa County Sheriff’s Office for more than nine months, but still, he is never too far from a headline.
And there have been plenty.
President Donald Trump pardoned him. His attorneys filed motions to have the entire criminal case against him thrown out. Just Monday, federal prosecutors filed legal papers agreeing. That was followed by a flurry of legal briefs arguing against the pardon and asking prosecution to continue anyway. More filings are expected. And in the middle of all of that, Arpaio told reporters at the Arizona Republic he hasn’t ruled out trying to unseat Senator Jeff Flake.
So just when Arpaio’s detractors thought the 85-year-old, six-term former sheriff would ride into the proverbial Arizona sunset, some are wondering if they have to think again.
Questions follow him like a posse.
What is the status of the case against Arpaio?
In July, U.S. District Court Judge Susan Bolton convicted Arpaio on contempt of court charges. She was scheduled to sentence him in October, but then on August 25, Trump pardoned him for the contempt charges and “any other offenses … that might arise, or be charged, in connection with” the Melendres class-action civil-rights lawsuit for racial profiling, which led to all of this. Trump said Arpaio was wrongly convicted “for doing his job” of enforcing immigration laws.
On August 28, Arpaio’s attorneys petitioned Bolton to dismiss the case and vacate her rulings. On Monday, the U.S. Attorney’s Office agreed in its court filing in response, saying the pardon made the entire matter “moot.”
“The President’s decision to grant Defendant a full and unconditional pardon for his conviction, and Defendant’s decision to accept it, ends this prosecution,” federal prosecutors wrote.
So it that it? Is this case over?
Probably, but not yet, and maybe not at all.
Bolton set a hearing for October 4 to rule on throwing the case out, but she could rule at any time if she decides a hearing isn’t necessary.
Third parties have intervened, trying to convince Bolton that the pardon is unconstitutional, or that her rulings should still stand even if Trump has now quashed her verdict. Some lawyers have argued that there are still legal points to resolve, and since the government has taken itself out of the game, that they should be allowed a day in court to make the case in the Justice Department’s stead. Arpaio’s attorneys have noted in court filings that if they don’t get what they want – full exoneration – they will continue pushing for an appeal to a jury trial, as federal statutes allow.
So was Trump’s pardon legit?
Yes. Pretty much.
Lawyers trying to force the issue are arguing that Trump overstepped his authority because the president cannot pardon someone in a way that violates some other constitutional protection: Racial discrimination that flaunts the 14th Amendment, for instance. But most lawyers think that’s, at best, an untested theory and, at worst, a Hail Mary in a blizzard.
Trump’s authority comes from Article 2, Section 2 of the U.S. Constitution. It says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
That’s it. No wiggle words. No qualifications. He gets to do it.
Arpaio’s attorneys had some choice, not-so-legalese, words to assess the claim that the pardon was unconstitutional, in their filing Tuesday afternoon.
They called those claims “a bitter soup that is too hard to swallow, being mixed with one part irrelevant English history, one part political bile, and a broth of Chicken Little syndrome, to taste.”
Besides, Arpaio’s lawyers argued, the U.S. Supreme Court unanimously ruled in a 1925 that the president could pardon a law enforcement officer for contempt of court, “precisely because of the danger of a judge refusing to give the defendant a jury, and that is exactly why the President’s pardon for criminal contempt is one of the checks and balances of the Constitution.”
The jury is a big deal to Arpaio’s team. More on that later.
So what happens next?
Bolton has to rule on a series of legal decisions.
She has to decide to dismiss Arpaio’s case or not, with or without prejudice. If she dismisses with prejudice, these charges can never come back.
Does she vacate all of her rulings?
If so, it’s as if the case and the criminal conviction never happened. If not, there remains a record of it. Many legal experts say that’s what a pardon is. It’s like expunging a case. Erasing it. But Arpaio’s opponents think there should remain a record of his transgressions. Lawyers debate whether that would, or should, have any legal bearing in the future.
Then Bolton has to decide if the group of civil rights lawyers and legal scholars should be heard in court. They have filed what are called amicus briefs, which means they are offering friendly unsolicited legal advice to the court. Nothing says the court has to pay attention.
Finally, if she agrees to let these lawyers make their cases, she has to decide if they have a valid point and rule on them. If that door is opened, what lies behind it is murky.
What’s Bolton likely to do?
It's anybody’s guess. It’s always a dangerous parlor game trying to read the intentions of judges. Bolton will be pulled in compelling and opposite directions.
If she rules with Arpaio’s lawyers and the Justice Department, the case is over.
The criminal case has dragged on for a year, and before that, related legal wrangling spanned a decade. Often in court, judges try to get the two sides to agree to as much as possible. The goal is to narrow debate, keeping down court costs and clearing precious room on the calendar.
With the two main parties making the same argument now, many judges would feel compelled to end the dispute. Many of Arpaio’s most vocal critics have said the best punishment is to let him fade into obscurity. That may carry weight for Bolton.
But on the competing hand, the whole case revolved around respect for court authority. Bolton ruled that Arpaio “showed flagrant disregard” for an order imposed by her colleague, U.S. District Court Judge Murray Snow.
Judges typically don’t take kindly to people thumbing their nose at them.
In the amicus briefs, interested intervening lawyers argue that the case was always about the rule of law and was bigger than Arpaio. They are trying to force the argument that Article 2 doesn’t give presidents free hand to pardon anyone they want, and that a precedent should be set that lawmen shouldn’t be allowed to flaunt the law.
In a letter to the DOJ just after the pardon, lawyers for the Protect Democracy Project and
FreeSpeechForPeople.org were more direct.
“One of the most important safeguards for the Due Process Clause is the courts’ power to hold wayward law enforcement officials in criminal contempt,” they wrote the DOJ. “The president’s unprecedented pardon ... conveys the unmistakable message that similarly situated local, state, and federal law enforcement officials need not fear the judiciary, because if they run afoul of a court order, the president will pardon them.”
Lawyers debate the legal merits of that claim, but many, maybe including Bolton, sympathize with the force of the moral imperative.
What if Bolton doesn’t make the case go away?
If Bolton does anything but dismiss the case with prejudice and vacate her rulings, Arpaio’s attorneys are ready to pounce.
They were not subtle in their motion to dismiss.
“If the Court does not vacate the defendant’s conviction, then defendant will certainly pursue his appeals to achieve that, which would be — to put it bluntly — a waste of everyone’s time and money.”
Arpaio’s team believes the conviction was a mistaken miscarriage of justice, corrected only by a jury trial. Before Trump’s pardon, they had filed a motion keeping open such an appeal. It wasn’t just that they favored Arpaio’s chances in front of voters.
They believe, attorney Jack Wilenchik told Phoenix New Times, echoing court filings, that the bench trial of Arpaio was inherently unfair.
A judge issued the court order. The same judge ruled Arpaio violated it. He also referred it to prosecution. A colleague on the same bench tried the case, rendered a verdict, and was set to pronounce punishment. Judges will hear the appeal. To Wilenchik, one branch of government was empowered to act like all of them. No separation of powers. No checks and balances. The pardon, he said, was intended to be that check, and the Supreme Court agreed in 1925.
Didn’t this all stem from a civil rights lawsuit? What ever happened with that?
It still goes on.
The Melendres class-action civil-rights lawsuit for racial profiling was settled when the Maricopa County Sheriff’s Office agreed with the American Civil Liberties Union to let federal monitors establish and enforce reforms. MCSO agreed to pay penalties, which paid for the painstaking record-keeping involved in monitoring the agency.
The case was all about immigration sweeps and traffic stops. Plaintiffs argued the MCSO was discriminating against Latinos in the way it enforced immigration laws.
Judge Snow presided over the federal oversight. He issued orders for MCSO to follow and instructed monitors to make sure the sheriff’s office carried them out. When he learned that his orders were not being enforced, he began the contempt of court process that culminated in Arpaio’s conviction.
Even though the contempt process is now over, and Arpaio is out of office, MCSO still has to comply with Snow’s direction.
Much of the contempt case centered on 151 people who were arrested after Snow issued an order in December 2011 telling MCSO to stop arresting people based “race or Latino ancestry” and turning them over for deportation.
Those people are now part of the class action and can claim damages. A year ago Snow ordered the Maricopa County Board of Supervisors to set aside $500,000 to pay out claims, but many plaintiffs have been deported and haven’t been located since.
So how and when does all that end?
Not any time soon.
Essentially, when Snow is satisfied that the conditions that gave rise to the lawsuit no longer exist at MCSO, the monitoring process begins to wind down.
Snow would declare MCSO in compliance and then monitors would stick around for another three years to make sure things stay that way and nobody backslides, according to the ACLU.
Many of the deputies and supervisors under Arpaio remain. So even though Sheriff Paul Penzone has embarked on his reform program, that doesn’t mean it will happen overnight. He may find himself answering many of the same questions from Snow as his predecessor if he faces internal resistance.
Federal consent decrees and compliance monitoring at law enforcement agencies can linger for years. Federal oversight of the Los Angeles, Oakland and Detroit police departments went on for more than a dozen years, and those are not isolated cases.
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John Burris was the civil rights attorney who successfully sued Oakland after four of its officers beat black men and planted drugs on them in a shakedown operation that became known as the infamous Riders Case.
When monitoring began, the San Jose Mercury News reported, Burris told the Oakland Police Department, “None of you will be here when this matter is finished,” and that turned out to be true.
Joe Arpaio may or may not ride into the sunset. But it is a safe bet that he, and many of his people responsible for his legal difficulties, may be gone before the final chapter in this saga is written.