The Arpaio Decision: When the World Is Extraordinary But the Law is Ordinary

Earlier this month, Judge Susan Bolton deemed President Trump’s pardon of former Sheriff Joe Arpaio to be lawful and therefore dismissed the pending case against him, which otherwise would have proceeded to sentencing.  But, yesterday, Judge Bolton refused to vacate all previous orders in the case, as Arpaio had requested.  That still leaves on the books her finding that Arpaio was guilty of criminal contempt, even if no punishment will flow from that finding thanks to Trump’s pardon.

Here’s what I find immediately interesting about Judge Bolton’s brief order setting out her reasoning: how ordinary that reasoning is.  That is, what interests me is how little her reasoning depends on the rather extraordinary background of this case—background so extraordinary that I, like some others, thought there was a conceivable argument for the invalidity of the pardon itself.  But the history of Arpaio’s case—the 2011 court order ordering him to cease his programmatic violation of constitutional rights, and the subsequent finding by Judge Bolton that he’d continued to do so and thus was guilty of criminal contempt—is simply recounted by Judge Bolton but does not serve as the basis for her decision.  And even the distinctive aspects of Trump’s pardon—including his apparent overruling of the federal judiciary’s view of the constitutional rights at issue in the case, as evidenced by Trump’s characterization of Arpaio as having been “doing his job” all along—are not what motivates Judge Bolton’s conclusions, at least as they are presented.

Instead, her reasoning could apply essentially to any pardon.  Her basic point is that, at least when a criminal prosecution is at the particular stage at which Arpaio’s was when Trump pardoned him, a judge may have to accept that the case gets dismissed—but the judge doesn’t have to look backwards and blot out the steps that got the case to that point, including the conviction itself.  Those remain, in Judge Bolton’s memorable phrasing, “historical facts” in the world.

For a case that’s quite unusual, Judge Bolton is invoking law that she presents as business as usual.  She’s not saying that this is how the Arpaio pardon works; she’s saying this is how all pardons work.  That doesn’t make her right or wrong; indeed, it appears the Ninth Circuit Court of Appeals will get a say on that question.  But it shows how, sometimes, even when the events in the real world appear extraordinary, the law to which judges turn to handle those events remains ordinary—at least on the surface. 

About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection, Visiting Professor of Law at Georgetown University Law Center, Fellow in New America’s International Security Program, Former Senior Director for Counterterrorism at the National Security Council, Former Deputy Legal Advisor to the National Security Council, Former Counsel to the Assistant Attorney General for National Security at the Department of Justice