Justice Department yields but federal judge not ready to toss Arpaio conviction

A federal judge is pumping the brakes on former Sheriff Joe Arpaio's bid to have his criminal-contempt conviction scrubbed following a presidential pardon, three days after prosecutors said they supported the defense's effort. 

In a Thursday filing in federal court, U.S. District Court Judge Susan Bolton ordered Department of Justice prosecutors to lay out what legal grounds back their position. 

A pardon traditionally affects a defendant's sentence, not the underlying criminal record.

But after President Donald Trump's Aug. 25 pardon, Arpaio's attorneys filed a motion to throw out the contempt verdict and dismiss the case.

DOJ prosecutors seemed to agree with their onetime adversaries in a Monday response.

They argued that because the pardon was issued before Arpaio was sentenced, the verdict is moot and the case should be dismissed.

READ MORE: Arpaio saga not over: Judge to rule on conviction

But Bolton's order pointed out case law that suggests that a conviction remains intact, even after a presidential pardon. 

Citing Nixon vs. United States (federal judge Nixon, not the former president), she wrote, "The granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is an executive action that mitigates or sets aside punishment of a crime." 

"The Government’s Response does not sufficiently address this issue," Bolton wrote. "Therefore, supplemental briefing is appropriate." 

She ordered DOJ attorneys to respond by Sept. 21, "addressing the extent to which vacatur should be granted, if at all, given both the absence of an entry of judgment and the authority provided in this order."

READ MORE: What makes Joe Arpaio so controversial?

On July 31, Bolton found that Arpaio was guilty of defying another federal judge's order in a racial-profiling case.

In December 2011, U.S. District Court Judge G. Murray Snow barred Arpaio's deputies from detaining individuals based on their immigration status, effectively putting an end to his signature immigration patrols. 

But the practice continued for 17 months, and during this time, Arpaio's office illegally detained at least 171 individuals. 

READ MORE: County sets aside $1 million for MCSO victims

Arpaio has maintained that the violations were unintentional.

Bolton did not yet address the chorus of motions filed since Monday, all urging her not to drop the case.

The motions were lodged by constitutional attorneys and scholars outside the criminal case, as well as American Civil Liberties Union attorneys, who represented plaintiffs in the underlying civil suit. 

Arpaio's attorneys opposed the motions. 

In a response Thursday to the ACLU, defense attorneys said throwing out a conviction is "established practice" in instances when a defendant's appeal is moot. The same principal, they argued, applies when a defendant dies before a judgment is made or appeals are completed. 

In their conclusion, defense attorneys threw a thinly veiled jab at Bolton: 

"(T)he integrity of our courts should be judged not by how they treat defendants whom they believe are innocent, but by how they treat the defendants whom they believe are guilty, whom they accuse of 'flagrant' contempt," the defense attorneys wrote. "The Court always sets its more powerful example when it follows the law to show mercy and integrity, than when it bucks the law to show pettiness or spite."

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