Prosecutor: Arpaio gave up appeal right in accepting pardon

A special prosecutor appointed to defend a ruling that refused to erase former Sheriff Joe Arpaio’s criminal record says the lawman gave up his right to appeal his contempt of court conviction when he accepted a pardon from President Donald Trump.

Christopher Caldwell said in a filing Monday with the 9th Circuit Court of Appeals that pardons moot any punishments that a person convicted of a crime might face, but they don’t erase judgments made by courts in those cases.

If Arpaio wanted to challenge his misdemeanor conviction for disobeying a 2011 court order to stop his immigration patrols, then he should have rejected the pardon and taken his chances in an appeals court, Caldwell wrote.

“This appeal is Arpaio’s last move to avoid being held accountable — even just on paper — for repeatedly violating Maricopa County residents’ civil rights and willfully (and publicly) defying judicial attempts to protect them,” Caldwell wrote. “This court should not indulge Arpaio’s desire to operate above the law by vacating the order confirming that he broke it.”

Arpaio served as the sheriff of metro Phoenix for 24 years until his defeat in late 2016. After election defeat and his pardon, Arpaio was defeated in the Republican primary for a U.S. Senate seat.

Caldwell was appointed to defend U.S. District Judge Susan Bolton’s ruling after the Justice Department, which won the conviction against Arpaio but sided with the lawman after his pardon, had refused to defend the decision.

The Justice Department asked the appeals court in a filing Monday to reverse Bolton’s ruling and order her to rescind the verdict. “A presidential pardon, not Arpaio, caused the mootness,” Justice Department attorneys wrote.

Echoing Arpaio’s attorneys, the Justice Department attorneys said the president could have issued the pardon even if Arpaio had not accepted.

Arpaio’s lawyers have argued 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.

Jack Wilenchik, one of Arpaio’s attorneys, said he expects a decision Monday on whether the U.S. Supreme Court will hear the former sheriff’s appeal seeking to reverse Caldwell’s appointment as special prosecutor.