The former six-term sheriff from metro Phoenix is appealing a ruling that refused to expunge his conviction for disobeying a 2011 court order barring his traffic patrols that targeted immigrants. The 2017 ruling said pardons don't erase convictions or the facts of cases and that President Donald Trump's pardon of Arpaio only removed his possible punishments.
Judge Daniel Collins, one of the three judges on the 9th Circuit Court of Appeals who heard Arpaio's appeal in San Francisco, said the pardon caused Arpaio's case to be dismissed and that the criminal charge can't be refiled.
"What more do you want?" Collins asked. Arpaio attorney Jack Wilenchik said the judges should clarify that the conviction doesn't have any legal consequences on his client. "This is a matter of judicial housekeeping," Wilenchik said.
Special prosecutor Christopher Caldwell urged the judges to reject Arpaio's arguments, saying the there are no legal consequences from the now-pardoned conviction and that U.S. District Judge Susan Bolton didn't abuse her judicial powers when she refused to erase the conviction.
"We believe Judge Bolton's order properly preserved the power of executive branch to pardon a criminal defendant while avoiding punishment for the conduct," said Caldwell, who was appointed to the case by the appeals court after the U.S. Justice Department refused to defend Bolton's ruling.
Arpaio's lawyers had previously told the appeals court that the lawman was deprived of his opportunity to appeal his conviction because the pardon came before he was sentenced and final judgment was entered, so the conviction must be erased.
Caldwell had argued in the past that Arpaio gave up his right to appeal the conviction when he accepted the August 2017 pardon — and that if the former sheriff wanted to challenge the conviction, he should have rejected the clemency and taken his chances in the appeals court.
Lawyers for the Justice Department won the conviction against Arpaio, but once the pardon was issued, the agency sided with Arpaio in arguing that the conviction should be expunged because he was pardoned before the conviction became final.
Arpaio, who didn't attend Wednesday's hearing, has acknowledged continuing his immigration patrols but insisted his disobedience wasn't intentional. He was accused of prolonging his immigration patrols for 17 months to boost his successful 2012 re-election campaign.
In finding Arpaio guilty in July 2017, Bolton cited TV interviews and a news release in which Arpaio made comments about keeping up his patrols, even though he knew they were no longer allowed. Arpaio's defiance of the court order is believed to have contributed to his 2016 election loss. The 87-year-old lawman is now seeking the Republican nomination to run for sheriff next year.
His first political comeback attempt ended when he placed third in the 2018 U.S. Senate primary. Even if the pardon hadn't been issued, the misdemeanor conviction wouldn't have prevented him from running for office again.
Follow Jacques Billeaud at twitter.com/jacquesbilleaud.