Late last night, five legal groups and scholars filed papers in federal court requesting that Judge Susan Bolton appoint a private attorney to complete the prosecution of former Sheriff Joe Arpaio for contempt of court. The legal request argues that the court should appoint such an attorney after the Department of Justice (DOJ) earlier in the day ceased its prosecution of Arpaio in light of President Trump’s pardon. The legal request comes after at least four different amicus curiae (“friend of the court”) briefs were filed before Judge Bolton yesterday arguing that President Trump’s pardon of Arpaio is unconstitutional. The appointment of a private attorney would allow the court to use the adversarial process to rule on the substantial constitutional questions raised by the President’s unprecedented pardon of Mr. Arpaio.
The groups supporting the request include: Coalition to Preserve, Protect and Defend; Free Speech for People; Protect Democracy; Professor Martin Redish; and Roderick and Solange MacArthur Justice Center.
Last month, two of the groups involved — Protect Democracy and Free Speech for People — wrote a letter to DOJ explaining why President Trump’s pardon violates the constitution and asking the Department to oppose the pardon in court. Yesterday, the Department declined to do that. Instead, DOJ told the court it agrees with a request made by Arpaio that his conviction should be vacated as a result of the pardon — a legal measure that, if granted, would erase the record that the conviction had ever happened to begin with.
Even setting aside the serious questions about the constitutionality of the pardon, Arpaio’s request that his conviction be erased entirely asks the court to grant a level of relief beyond President Trump’s pardon of his conviction. As DOJ explains on its website in a Q and A about pardons:
Does a presidential pardon expunge or erase the conviction for which the pardon was granted?
No. Expungement is a judicial remedy that is rarely granted by the court and cannot be granted within the Department of Justice or by the President. Please also be aware that if you were to be granted a presidential pardon, the pardoned offense would not be removed from your criminal record. Instead, both the federal conviction as well as the pardon would both appear on your record.
In the papers filed last night by the legal groups, they explain that according to the Federal Rules of Criminal Procedure that govern these proceedings, when DOJ declines to prosecute a contempt matter referred to it by the courts, “the court must appoint another attorney to prosecute the contempt.”
Judge Bolton has scheduled a hearing for October 4, 2017, to consider whether to grant Arpaio’s request that his conviction be vacated entirely on the basis of the President’s pardon.