The defendant here, former Maricopa County Sheriff Joseph M. Arpaio (“Sheriff Arpaio”) was referred for criminal contempt on August 19, 2016. The U.S. prosecuted Sheriff Arpaio and obtained a conviction on July 31, 2017. 2017 WL 3268180. On August 25, 2017, President Donald J. Trump pardoned Sheriff Arpaio.

On August 28, 2017, Sheriff Arpaio moved for two forms of relief (1) to dismiss this matter with prejudice, and (2) to vacate the verdict and all other orders in this matter, as well as the sentencing on October 5th. The district court Judge, Susan Bolton, granted Sheriff Arpaio’s first request, and on October 4, 2017, the district court dismissed with prejudice the action for criminal contempt.

The district court denied Sheriff Arpaio’s second request to vacate the verdict and all other orders on October 19, 2017. 2017 WL 4839072. The district court and refused to grant “relief beyond dismissal with prejudice.” The court specified that the power to pardon is an executive prerogative of mercy, "not of judicial recordkeeping." The court found that the pardon undoubtedly spared the defendant from any punishment that might otherwise have been imposed, but it did not "revise the historical facts” of this case.

That same day, Sheriff Arpaio filed a timely notice of appeal. The U.S. responded that it “does not intend to defend the district court’s order from October 19, 2017 . . . instead, the government intends to argue, as it did in the district court, that the motion to vacate should have been granted.”

On April 17, 2018 the Ninth Circuit granted a motion to appoint a special prosecutor, finding that "the merits panel of our court that will decide this appeal will not receive the benefit of full briefing and argument unless we appoint a special prosecutor to defend the decision of the district court." 887 F.3d 979. On October 10, 2018, the Ninth Circuit declined to review en banc the earlier decision to appoint a special prosecutor to defend the ruling of a lower court. 906 F.3d 800. On October 15, 2018, the Circuit court appointed a special prosecutor by an order providing that “[t]he special prosecutor will be limited to the functions a government attorney would have performed in connection with Arpaio’s appeal in this Court had the government been willing to perform those functions.” In January of the following year the defendant petitioned for cert, arguing that the Ninth Circuit should not have replaced DoJ prosecutors with a special prosecutor. That petition was denied three months later.

On appeal, Arpaio argued that the district court should have granted both the vacatur and the dismissal, rather than just the dismissal. Arpaio claimed that failure to grant vacatur was an abuse of the district court's discretion. In February of 2020, the Ninth Circuit issued its opinion, which ruled that the district court was correct to not vacate Arpaio's verdict. 951 F.3d 1001. Specifically, the Ninth Circuit held that, because Arpaio was not sentenced, he had not received a final judgment and was therefore not entitled to vacatur.

Abigail DeHart - 03/04/2019
Jack Hibbard - 05/22/2020


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