Joe Arpaio. (Photo: Gage Skidmore via Wikimedia Commons)

A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit has upheld the decision of the federal judge in Phoenix who oversaw the criminal case against Joe Arpaio, the former Arizona sheriff whom the president pardoned in 2017.

U.S. District Judge Susan Bolton of the District of Arizona in Phoenix, who oversaw the criminal contempt of court case against Arpaio, granted his lawyers' motion to dismiss but declined to vacate the court record in the case, finding the presidential pardon did "not erase a judgment of conviction, or its underlying legal and factual findings."

In a 15-page published decision issued Thursday, a three-judge Ninth Circuit panel upheld Bolton's decision refusing to vacate the verdict, but did note that verdict "has no legal consequences" going forward. Ninth Circuit Judge Jay Bybee noted that though colloquially guilty verdicts are often referred to as "convictions," they don't have the legal consequences of a "final judgment of conviction" that attaches at sentencing, and thus aren't subject to the so-called Munsingwear rule, which provides for vacatur of cases that have become moot while on appeal.

"First, although the verdict would have been essential to any final judgment of conviction, there was no final judgment of conviction here, because Arpaio was never sentenced," Bybee wrote in a decision joined by Circuit Judges N. Randy Smith and Daniel Collins. "Second, for the final judgment that was entered in this case—a dismissal of the criminal contempt charge—the verdict was not only not essential to the judgment, but was inconsistent with it."

In an email statement, Arpaio's lawyer, John "Jack" Wilenchik, said that the court "gave us exactly what we asked for, which is a determination that the judge's finding of guilt is legally meaningless (it 'has no legal consequences')." Wilenchik said that Bolton in the decision below had indicated that the finding of guilt could and should be considered in future proceedings.

The Department of Justice notably declined to defend Bolton's vacatur decision, leading the Ninth Circuit to appoint Boies Schiller Flexner partner Christopher Caldwell as a special prosecutor to defend the lower court's ruling. That appointment, in turn, prompted deep and public divisions within the court itself as Circuit Judge Consuelo Callahan wrote a dissent from the order appointing Caldwell, which was joined by three judges including Bybee.

In a footnote in Bybee's Thursday decision, the court thanked Caldwell "for accepting the appointment and for faithfully discharging his responsibilities as special prosecutor."

Caldwell didn't immediately respond to a request for comment.

Read the opinion: