Before the people of Maricopa County, Arizona, finally voted him out of office in 2016, Sheriff Joe Arpaio spent 24 years cultivating the image of what he thought was a tough lawman.
As a citizen and a lawman, I believe in protecting our borders by every constitutional means possible. But Arpaio was also determined to show the nation how to come down hard on undocumented immigrants, and he wasn’t about to let the Fourth Amendment stop him.
For him, “probable cause” came down to racial profiling. He ordered his deputies to stop anyone who looked “illegal,” which is to say Hispanic. Those who couldn’t produce proof of citizenship or legal immigrant status were arrested and detained.
As a result of his approach to law enforcement and his refusal to comply with previous court orders, a federal judge found him in contempt of court in July 2017. What manner of government official could defend such contempt of law — on the part of a lawman no less?
By now nobody should be surprised by the answer: President Donald J. Trump.
Since the early days of the presidential campaign, Trump and Arpaio have been ideological soulmates. They initially bonded over “birtherism” — the bizarre, racist conviction that Barack Obama was not born in America — but they think as one with regard to unconstitutional police tactics. Recently, the President advised police officers to treat prisoners “rough.”
Even more recently, he unconditionally approved of Arpaio’s approach to illegal immigration. “So was Sheriff Joe convicted for doing his job?” the President asked his audience at a Phoenix “campaign rally” on August 23. The question was intended to be rhetorical. But it actually has an answer: If Arpaio’s job was to be a vigilante, yes, he was doing it. If it was to be a sheriff, no, he was violating the Fourth Amendment.
Trump continued: “You know what, I’ll make a prediction: I think he’s going to be just fine. OK? But I won’t do it tonight, because I don’t want to cause any controversy.” Then he added: “But Sheriff Joe should feel good.”
In the wake of his wink-and-nod support of neo-Nazis and Klansmen following the deadly rally August 12 in Charlottesville, Trump’s remarks in Phoenix were another wink and a nod — this time to contempt of law by a sheriff turned vigilante. Just two days later, on August 25, the winking and the nodding morphed into a full-on presidential pardon.
According to reporting in The Washington Post, that pardon was actually Trump’s Plan B. This spring, the President asked Attorney General Jeff Sessions “whether it would be possible for the government to drop the criminal case against Arpaio, but was advised that would be inappropriate.” So the President bided his time.
Now, there is no question that the Constitution gives any president the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
As James Pfiffner, professor of Public Policy at George Mason University, has written, “The pardon power has been and will remain a powerful constitutional tool of the President. Its use has the potential to achieve much good for the polity or to increase political conflict. Only the wisdom of the President can ensure its appropriate use.”
There’s the rub.
Trump, who ran as the “law and order candidate” and then swore to “preserve, protect and defend the Constitution of the United States,” used his first presidential pardon to circumvent law and order. A member of the executive branch, he excused a former sheriff’s contempt for the judicial branch by effectively nullifying a judge’s ruling.
And when it comes to judges, Trump and Arpaio are on the same page. As a candidate, Trump maligned US District Judge Gonzalo Curiel, an American of Mexican heritage. As President, he has repeatedly condemned the entire judiciary as “political.”
In the case of the Arpaio pardon, the President has come up a little shy. He slipped it into a tweet, which the White House followed with a press release. More tellingly, he issued the pardon on Friday night, when he should have been doing what the rest of the nation was doing — focusing on the menace Hurricane Harvey posed to lives and property in Texas.
To me, using a Category 4 hurricane as cover suggests consciousness of wrongdoing. Did the President understand that just about everyone would see the pardon as a transparent reward for the slavish loyalty of a political supporter?
Or was it that the President wanted to send a wink and a nod to only certain people? Mike Flynn, for instance, or Paul Manafort, or anyone else — friends and family alike — who might be inclined to cooperate with Robert Mueller’s probe into what Trump himself has called “this Russia thing with Trump and Russia.” Getting Arpaio off the hook begs a question: Why ask a “special counsel” for immunity when you already know a president with a bottomless pocketful of pardons?
