Trump Can Pardon Joe Arpaio, But History Can’t

In granting mercy to the notorious sheriff, Trump ignores the rule of law.

August 25, 2017

Donald Trump had a choice. He could have respected the rule of law or he could have pardoned former Arizona sheriff Joe Arpaio. By granting mercy late Friday to his fellow birther, his political bedfellow, his loyal partner in harassing the nation’s immigrants, Trump sent the strongest possible signal yet that his administration’s tough-on-crime talk about “law and order” and a restoration of morality in law enforcement is in truth a load of hooey.

I have covered Arpaio’s antics in Maricopa County for more than a decade and it is hard to name a more lawless lawman. He didn’t just commit criminal contempt when he violated a federal court order halting his unconstitutional immigration roundups. He reveled in it. He did it gleefully, boastfully, publicly; daring federal authorities to do something about it. And then, when they did, when federal prosecutors called him on his misconduct, Arpaio wasn’t even willing or able to muster the courage of his racist convictions. He pretended instead that he had been ignorant. (In a 2009 deposition, for example, the sheriff of the nation’s fourth most populous county admitted he did not know the 14th Amendment, the one that guarantees, among other things, equal protection and due process.)

It’s worth remembering how we got to this sad end. Arpaio’s rap sheet is as long as those he fantasizes belong to immigrants and Hispanics. In 2008 and 2010 the ACLU won litigation against Arpaio over his deplorable treatment of jail inmates,who lived in what some considered concentration-camp-like conditions. Then there was the “criminal investigation” Arpaio launched against county supervisors and state judges who had dared criticize him. That didn’t go well for America’s most vindictive sheriff.No one (was) so much as indicted (much less tried and convicted) and county taxpayers had to cough up nearly $45 million in legal settlements and fees in suits brought by the targets of Arpaio’s pique.

Then, in 2012, the Justice Department sued Arpaio for racial profiling Latinos in Maricopa County. According to one DOJ expert, Arpaio oversaw “the worst pattern of racial profiling by a law enforcement agency in U.S. history.” Faced with losing the civil rights case, Arpaio behaved in classic Trumpian fashion: he launched a bogus investigation of the federal judge hearing the case, his wife, and even U.S. Attorney General Eric Holder, who were all allegedly part of some conspiracy to undermine the good sheriff.

He also refused and failed to comply with federal court orders requiring him to halt the discrimination. This prompted the judge-- G. Murray Snow, a well-respected President George W. Bush appointee – to hold Arpaio in civil contempt. “Defendants have engaged in multiple acts of misconduct, dishonesty, and bad faith,” the judge wrote.

Murray then referred the matter back to the Justice Department for a criminal contempt case.

Last summer, Arpaio was charged with three counts of criminal contempt. A bench trial was held earlier this year. Last month, another judge found that Arpaio, indeed, had willfully violated a federal court order; had shown “flagrant disregard” for the court’s authority. It was this finding that had the case set for sentencing in October – a legal process which Trump cut short with his pardon.

Every bully is a coward and there have been few bullies as pernicious as Arpaio. He was gratuitously cruel to inmates even before he began to be unconstitutionally cruel to his Hispanic constituents. And the sad punchline is that he continues to this day to be the darling of American constitutionalists, white supremacists, and other Trump supporters despite the fact that he became so obsessed with harassing undocumented immigrants (and lawful ones, too) that his investigators failed to investigate sex crimes. Hundreds of them. This is the public servant the president believes should be beyond the reach of justice.

Arpaio’s pardon is a punch in the gut to the Justice Department, which fought his misconduct for years. It is a punch in the gut to the federal judiciary, which operates under the reasonable expectation that public officials like Arpaio, who swear an oath to the Constitution after all, will follow valid court orders. Indeed, the foundation of our entire system of laws is that public officials like Arpaio must comply with valid court orders whether they agree with them or not. Without such compliance there is no law. There is only the personal power of petty despots.

The fact that Trump chose to pardon Arpaio now, even before his sentencing, violates the Justice Department’s own policies and procedures for clemency. No wonder Attorney General Jeff Sessions, who was so quick to denounce President Obama’s commutations, was dead silent on Trump’s pardon. Justice Department officials, aware that the president had just flouted clear DOJ rules, couldn’t even muster a press release, settling instead for a desultory sentence that let the world know this move came from the White House and not Sessions and company.

A president’s pardon power may be absolute, but that does not mean it should be devoid of any due process or other indicia that generates confidence in the substance of the mercy. Nor does it rescue what Trump just has done to lament what President Clinton did in the case of Marc Rich or what President Obama did in the case of Chelsea Manning. Hundreds of federal inmates with ties to Arizona have been patiently waiting for some presidential relief from their unjust sentences. They have completed all their paperwork, shown the requisite remorse and regret, yet languish in federal detention. These efforts are likely to go nowhere with Trump just as they did with Obama.

Arpaio, meanwhile, has shown no remorse or regret for breaking the law and now claims he himself is a victim—of age discrimination, of all things. But he shares the president’s political views -- including the frightening notion that the federal judiciary need not be independent– and so he got special treatment. This is not how the rule of law is supposed to operate. An arbitrary and capricious exercise of presidential power has been bestowed on a public official found to have violated his oath of office. Wouldn’t you love to hear how Attorney General Jeff Sessions will try to square his push to “restore integrity” to the Justice Department with Trump’s knee-jerk pardon of a man who flouted the most basic rule of constitutional ethics—obey a judge!

Sadly, all one has to do is read the White House statement announcing the pardon to recognize that the president and Sheriff Joe share the same penchant for delusion. In Trump’s view, a disgraced sheriff routed out of office for misconduct and incompetence has exemplified “selfless public service.” In Trump’s view, a lawman so obsessed with the racist treatment of Hispanic people in his community that he failed to investigate sex crimes protected “the public from the scourges of crime and immigration.” I guess it all depends upon what your definition of “scourge.”

Trump can pardon Arpaio, but history will not.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

(Image: Flickr.com/GageSkidmore)

(Editor's note: Article updated on August 28)