Judge won't vacate Arpaio's contempt conviction without oral arguments

[Judi Lynn]

Source: The Arizona Republic


USA TODAY NETWORK
Michael Kiefer and Yvonne Wingett Sanchez, The Arizona Republic
Published 10:43 p.m. ET Aug. 29, 2017 | Updated 10:44 p.m. ET Aug. 29, 2017


PHOENIX — U.S. District Court Judge Susan Bolton canceled former Sheriff Joe Arpaio's upcoming sentencing hearing for his criminal contempt-of-court conviction, telling attorneys not to file replies to motions that were pending before Arpaio’s recent presidential pardon.

However, Bolton on Tuesday stopped short of throwing out the conviction based solely on Arpaio's request. Instead she ordered Arpaio and the U.S. Department of Justice, which is prosecuting the case, to file briefs on why she should or shouldn't grant Arpaio's request.

. . .

Bolton has scheduled oral arguments on the matter for Oct. 4, the day before Arpaio was supposed to be sentenced.

There is case law that says a pardon implies an admission of guilt, and that will have to be argued in open court.

Read more: https://www.usatoday.com/story/news/nation-now/2017/08/29/judge-wont-vacate-arpaios-contempt-conviction-without-oral-arguments/615146001/

[dflprincess]

1. Arpaio has admitted guilt by accepting the pardon

why is the court's time being wasted with this?

[Judi Lynn]

2. Already-pardoned Arpaio asks judge to undo conviction

Jacques Billeaud, Associated Press
 Updated 7:26 pm, Monday, August 28, 2017

PHOENIX (AP) — Fresh off his presidential pardon, an emboldened Joe Arpaio on Monday lashed out at his critics and the judge who found him guilty of a crime as his attorneys went to court to throw the court decision that was the basis for his conviction.

The former Arizona sheriff struck a defiant tone in insisting he "didn't do anything wrong" and questioning whether his judge was fair. His comments came as President Donald Trump took a similar posture in defending his Friday pardon of the former lawman, blaming the Obama administration for Arpaio's troubles and calling him a "patriot" who fought against illegal immigration.
 
"I thought he was treated unbelievably unfairly," Trump said.

Arpaio called U.S. District Judge Susan Bolton biased and questioned the growing number of critics across the United States who denounced his pardon as a political reward for having been an early supporter of Trump's campaign.

More;
http://www.chron.com/news/politics/article/Already-pardoned-ex-sheriff-asks-judge-to-undo-12103025.php

Posted yesterday in LBN:
https://www.democraticunderground.com/10141854727

[Not Ruth]

3. I read elsewhere on DU that admitting guilt by accepting the pardon is not a real thing

[More_Cowbell]

4. It's undecided

Wikipedia has a short but useful discussion on Burdick v. United States, which is the case people are thinking about when they talk about acceptance of a pardon as an admission of guilt: https://en.wikipedia.org/wiki/Burdick_v._United_States

The two passages in the case that I assume people see as supporting this argument are these: "confession of guilt implied in the acceptance of a pardon may be rejected" and "The latter [pardon] carries an imputation of guilt; acceptance a confession of it."

The reason why this issue is undecided is because this wasn't the issue facing the court. The court was considering the effect of an unaccepted pardon. So the above statements, even though they're part of the opinion, are what's called "dicta"-- language that the court said but that was not necessary to decide the issue before it. Another court can choose to accept it or not. Dicta has no precedential value, though sometimes it's used to support an argument in a later case.

It's a short opinion, in case anyone's interested in reading it: http://caselaw.findlaw.com/us-supreme-court/236/79.html

It could be that this judge will be the start of a line of cases considering this issue that will, I'm sure, end up at the Supreme Court.

[dflprincess]

8. A former Watergate lawyer on Chris Hayes tonight

did say the "pardonee" loses the right to appeal and cannot invoke 5th Amendment so s/he can be compelled to testify in cases related to the crime they were pardoned for.

I missed what, if anything, she said about an admission of guilt.

[unblock]

6. There may be some value in requiring arpaio to explicitly accept and use the pardon in court.

He could otherwise claim that he never accepted the pardon (and therefore no admission of guilt). Hey, the prosecution saw the pardon and threw out the case, I had nothing to do with that.

[flibbitygiblets]

5. Is this so he can have guns? I thought that only felony charges prevented owning them.

and I assume contempt is not a felony, but help me out here.

[Princess Turandot]

7. My guess: most likely, he's worried about civil liabilities aka $$$...

It was a civil suit by the victims of his 'jail' and civil rights groups that led to a judicial order to stop what he was doing in the jail that he ignored, which then led to the criminal contempt charge/conviction.

While presidential pardons don't extend AFAIK to civil lawsuits, he might think he'd be in a better position in a lawsuit if the judge voided the contempt charge altogether. i.e. if the contempt charge wasn't appropriate, he might argue that the underlying activities that ultimately led the contempt charge were less significant.

All conjecture on my part, however.

[Judi Lynn]

9. Joe Arpaio still has to argue his innocence to a federal judge

8:52 a.m. ET

On Tuesday, U.S. District Judge Susan Bolton in Arizona canceled former Maricopa County Sheriff Joe Arpaio's sentencing hearing, which had been scheduled for Oct. 5. Bolton also outright declined Arpaio's request to vacate the criminal contempt-of-court conviction due to the pardon he received from President Trump. On July 31, Bolton had found Arpaio in contempt of court for flagrantly disregarding a series of orders from another federal judge to cease stopping and detaining Latino drivers based on assumptions about their immigration status.

Instead, Bolton ordered the Justice Department and Arpaio to appear in court on Oct. 4 for oral arguments on his request to vacate the conviction. "There is case law that says a pardon implies an admission of guilt, and that will have to be argued in open court," The Arizona Republic notes. The outcome of the hearing could affect civil cases against Arpaio.

More:
http://theweek.com/speedreads/721702/joe-arpaio-still-argue-innocence-federal-judge

[AntiFascist]

10. WP explains why there may be a Constitutional issue...

https://www.washingtonpost.com/blogs/right-turn/wp/2017/08/30/legal-challenge-to-arpaio-pardon-begins/?utm_term=.fb011a9f9dc6

...
Put simply, the argument is that the president cannot obviate the court’s powers to enforce its orders when the constitutional rights of others are at stake. “The president can’t use the pardon power to immunize lawless officials from consequences for violating people’s constitutional rights,” says one of the lawyers who authored the letter, Ron Fein, legal director of Free Speech for People. ...

In other words, if the president can pardon anyone who defies court orders to enforce constitutional protections, then those constitutional protections are rendered meaningless. It is a creative argument, but then, this president has created new and disturbing challenges to democratic norms.

https://www.washingtonpost.com/blogs/right-turn/wp/2017/08/31/trump-may-get-bitten-by-his-own-abuse-of-the-pardon-power/?tid=hybrid_collaborative_1_na&utm_term=.9607c00a9e32

The Arpaio contempt order, for example, stemmed from a civil suit brought by the ACLU. Any orders or remedies obtained in that action are unaffected by a pardon...