President Trump’s pardon of former Maricopa County Sheriff Joe Arpaio was reasonable and appropriate. In short, it was a political resolution to a political standoff. It was the last card in a clash instigated by the political policies of the prior US Administration, the political policies of an Arizona Sheriff, the political overreach of federal trial judges, and the trump card of a new president whose policies aligned with the sheriff rather than the prior administration.
Before I try to break all that down, let me acknowledge that the instant eruption of hot argument over the pardon is mostly detached from the facts that make up the story. Rather, it simply reflects a clash of two narratives. A) Vigorous border enforcement good; Obama administration weak; Arpaio a brave soldier; Presidential pardon good. vs. B) Vigorous border enforcement racist and xenophobic; Arpaio racist; Disobeys lawful court order; Lock him up.
First, and to be revisited later, Arpaio was not convicted by a jury of violating any law. He was sanctioned by a judge for disobeying the judge’s order. Those circumstances dispose of much normal due process, and essentially make the judge, judge, jury, and executioner. The bigger issue is that Trump critics believe this action just confirms his alleged racism and lawlessness, and are rushing to make it the next impeachment level frenzy. Let me also disclaim that I am writing this on the fly, working from recollection, and will need to go back to document and substantiate with links and possibly submit for outside publishing.
The merits here are more nuanced than the clashing narratives admit. Arpaio went out of retirement from law enforcement in 1992 to run for sheriff precisely to address what Maricopa perceived as a problem of rampant crime and lax border enforcement. President Obama’s record on immigration is complex and debated. Some, including Obama and his defenders when it’s convenient, cite a high level of deportations. However, if accurate, those numbers reflect not border security, but a focus on illegal immigrants who have violated criminal laws. The border itself, critics charge, became increasingly porous and in places in Texas and Arizona, a virtual lawless no man’s land and sometimes warzone.
The federal government has legal authority over immigration policy and enforcement. But, two complications come into play here. First, the policy and its enforcement should reflect the statutory law of the land, and not purely the whims of the current administration. Many in Arizona believed they were being neglected and sacrificed to the administration’s desire not to police and interdict border crossers.
Second, state and local law enforcement cannot establish or execute immigration policy, but, they have had the long recognized authority, when they come into contact with people illegally present in the US, to detain the people and hold them for apprehension by federal authorities. Arpaio was an enthusiast of this practice. The Obama administration was not an enthusiast of retrieving all the detainees Arpaio wanted it to claim. Among other related issues, it became something of a festering debate between Arizona and the United States, Arizona’s position being: “Enforce the damn law!” and the Administration’s position being: “We are the law.” Recall the spectacle of the faceoff between Obama and Governor Jan Brewer at the airport. Some of the coverage embarrassed the administration. Most of it was designed to embarrass Arizona and to demonize Arpaio.
In 2007, I believe, Arpaio had improperly detained for eight hours a Mexican immigrant who actually held a valid travel visa. The immigrant sued Arpaio for civil rights violations. The Obama administration intervened in the lawsuit and basically tried to tie Arpaio’s hands. Claiming absolute authority over immigration policy, the administration argued, and the judge bought, that Arizona had no authority detain people simply because of their illegal presence in Arizona. The administration asked for and the judge entered an order barring Arpaio from detaining illegal immigrants and trying to present them to ICE to take into custody.
This was essentially a lawless order constituting an “Arpaio Exception.” Any other police or sheriff department in the land could, when contacting an illegal immigrant in the course of ordinary law enforcement, whether traffic, domestic, or criminal, hold that person and notify the feds. But now, not Joe.
Arpaio’s Department said: “That’s nuts. We’re going to keep doing it.” And announced to the public they were going to keep doing it. And so, the clash between the sheriff and the feds continued for a number of years. Obama’s DOJ sought and obtained a finding of civil contempt against Arpaio. Arpio pressed on. Obama’s DOJ sought a criminal contempt citation. The first judge referred the matter for hearing to a different judge. In typically slimy political mode, DOJ brought the criminal complaint weeks before Arpaio’s run for reelection in 2016. Trial to a judge, not a jury, was in late October. Arpaio was convicted and lost reelection in early November. Trump won election the same day, in part running for strong border enforcement and against Obama’s immigration policies. The proceedings continued till the present and the 85 year old Arpaio was about to be sentenced, until Trump yesterday pardoned him.
People can and will think what they want about Arpaio and about Trump. As for the disposition of this case, I believe it was the right political outcome of a thoroughly political clash and that Arpaio does not belong in jail.