9th Circuit skeptical Arpaio needs more relief after post-pardon dismissal

Three 9th U.S. Circuit Court of Appeals judges repeatedly questioned the purpose of an argument session Wednesday over a criminal contempt conviction attorneys agreed had been rendered moot by a presidential pardon.

Attorneys supporting former Maricopa County Sheriff Joe Arpaio argued such pardons should essentially wipe clean -- via judicial vacatur -- an underlying criminal docket that might contain, as here, a guilty finding. But Wednesday's panel suggested relief already granted by U.S. District Judge Susan R. Bolton -- an order dismissing the matter with prejudice following President Donald J. Trump's pardon -- fully reprieved Arpaio.

"You have a judgment of dismissal with prejudice in your favor," recent Trump appointee Circuit Judge Daniel P. Collins told Arpaio's counsel, John Wilenchik of Wilenchik & Bartness PC in Phoenix. "What more do you want than that?"

Bolton found Arpaio guilty of criminal contempt July 2017 for failing to follow a court order pertaining to the former county sheriff's immigration control tactics. Before Arpaio received a sentence from Bolton a pardon came from the president, which prompted the judge to fully dismiss the case.

But Wilenchik argued Wednesday Bolton should have gone further to vacate altogether her earlier guilty finding lest it put Arpaio in any future jeopardy -- perhaps with an enhanced criminal sentence premised on Bolton's decision. But Wilenchik also acknowledged Arpaio's case was moot, leaving the judges struggling to see how those potential -- collateral -- impacts could come about.

"You agree [the case] is moot, but you think that there are collateral consequences unless we order a vacatur," Collins said. "Those seem to be logically incompatible premises."

"They are, and that's what I've struggled with," Wilenchik conceded. "The court raises a very good issue."

Collins continued to suggest Bolton's finding, though perhaps unpleasant for Arpaio to see remain on the criminal docket, retained no legal effect after the lower court's dismissal.

"The judgment in this case is that it is dismissed. The claims are dismissed with prejudice. That's the final order that was entered here," Collins said. "Is there any ... case that applies in this context where the judgment is in fact in your favor and says that you can get more than a judgment in your favor?"

Circuit Judge Jay S. Bybee also seemed perplexed as to what exactly Arpaio's counsel was asking for,

"What, precisely, is it that you want stricken from the records?" Bybee pressed.

Wilenchik persisted to argue it was "fundamentally unfair" that, because Arpaio's case was moot, he was "forever convicted" without any available means of purging that guilty decision from court records. But that tack elicited ire from the panel's third member, Judge N. Randy Smith.

"That's not the law -- that it's fundamentally unfair," Smith said. "I mean, I'm trying to get what it is [Bolton] did wrong ... and frankly I'm having a tough time understanding what you think she did wrong."

Smith also challenged the attorney supporting Bolton's ruling, Boies Schiller Flexner LLP partner Christopher G. Caldwell, asking him if the judge hadn't unfairly slighted Arpaio's concerns.

"She was of the idea that this particular pardon only did one thing, and that is get rid of any sentence that relates to this, and you got it done, and that's all you're getting," Smith said. U.S. v. Arpaio, 17-10448.

"Mr. Arpaio got what he wanted from the pardon," Caldwell replied. "A pardon does not do away with the finding of guilt. It relieves the pardoned party of punishment and that is exactly what happened here."