Why the Arpaio Pardon Is Really Cause for Hope in Disguise

Trump Can Dismiss Federal Charges, but He Can’t Get Around State Law

Sheriff Joe Arpaio speaking with supporters at a campaign rally for Donald Trump at the Prescott Valley Event Center in Prescott Valley, Arizona.

Gage Skidmore

Sheriff Joe Arpaio speaking with supporters at a campaign rally for Donald Trump at the Prescott Valley Event Center in Prescott Valley, Arizona.

Is the glass 99 percent empty or one percent full? With hope ​— ​like water ​— ​such calibrations don’t matter. You take what you can get. I say that as someone with a chronic case of Trump fatigue. All the ranting and raving seems futile and boring. Can we please change the channel?

I’m here to say don’t touch that dial. There’s reason for optimism. However, you need to squint squarely into the Arizona sun to see it. I’m speaking of Trump’s decision last week to pardon Maricopa County Sheriff Joe Arpaio, America’s favorite colorfully cranky unrepentant racist. Earlier this year, Arpaio was found guilty of criminal contempt of court for flagrantly flouting court orders to stop racially profiling. Trump would have pardoned Arpaio ​— ​famous for dressing his inmates in pink underpants and incarcerating them in desert tents where the mercury hits 145 ​— ​even sooner, but even officials at his own Department of Justice resisted. Not even Trump, they cautioned, could issue a pardon before a conviction had been handed down. To do so, they objected, defied the laws of physics.

As dog whistles go, the Arpaio pardon qualifies as a screeching two-fer. First, it allows Trump to double down with the “white makes right” crowd in the wake of the uproar over his “very fine people” equivocations about Nazis and the Klan. More to the point, it signals Trump’s absolute willingness to pardon anybody for anything ​— ​no matter how shameful. For those worried about being brought up on charges of lying to FBI investigators about Trump’s ties to Russia, the Arpaio pardon was engineered to offer more reassurance than a year’s supply of Xanax.

Here’s where the squinting begins. I had a beer the other day with a friend connected to Bill Clinton’s White House. Word is that while Trump can pardon himself and anyone else brought up on federal charges, he lacks such legal omnipotence when it comes to crimes prosecuted by state attorneys general. If law enforcement in New York or Florida, for example, were to investigate efforts to cover up the role of Russian investments, those would be fires Trump couldn’t legally put out. How to connect the dots from Robert Mueller’s FBI all the way to various state house indictments, I’m not sure. Like I said, I only had one beer.

Still, hope is hope. And believing is seeing. Unless it involves Arpaio’s actual record of transgressions, which, seen or unseen, defy belief. The Civil Rights Division of the Department of Justice began investigating Arpaio as early as 1995, when Clinton was in the White House. It did so again under Bush and again under Obama. The most recent investigation concluded in 2011. In that, an expert hired to review traffic stops in Maricopa County found Latino drivers were four to nine times more likely to be pulled over by Arpaio’s deputies than non-Latino drivers. There was no pretense of a pretext of probable cause for one-fifth of traffic stops, most of which involved Latino drivers. “Overall the expert concluded that this case involves the most egregious racial profiling in the United States he has ever personally seen …,” the report found.

The report also concluded Arpaio’s methods didn’t catch many illegal immigrants either. Only 10 percent of those pulled over in the county were without proper documents. Arpaio also ran the county jail, where Spanish-speaking detainees were subject to special abuse. Inmates who could not follow orders issued in English ​— ​Spanish was not used ​— ​found themselves put in the hole for 23 hours of solitary or their entire pod shut down for extended periods. Sheriff’s deputies exchanged witty emails featuring cartoons of “Mexican yoga” ​— ​drunken Mexicans sleeping it off ​— ​and “Mexican engineering” ​— ​a roll of toilet paper affixed to a coat hanger. Uppity Latinos who complained of their treatment had a habit of getting arrested on various pretexts. Charges would invariably be dropped, but after a few hours ​— ​or a few days ​— ​behind bars, the message got delivered. Attorneys representing these Latinos also had a habit of having state bar complaints filed against them by county sheriffs. Judges who ruled favorably on motions brought by these attorneys were likewise subjected to state judicial council complaints. For the record, all complaints were investigated; none were substantiated. When those failed, Arpaio filed federal racketeering charges against one of those judges; that, too, went nowhere.

There were, of course, the countless cases in which excessive force was used to subdue Latino subjects who, in fact, were not resisting. In 2008, the Goldwater Institute issued a report finding that violent crime was going up in Maricopa County at the same time it was going down in other “similarly situated jurisdictions.” From 2004 to 2007, Maricopa County saw a 69 percent increase in violent crime and a 166 percent increase in homicides. By 2008, it flattened out. But in similar jurisdiction, it was going down by 10 percent. The energy required to target Latinos distracted resources from other police work. In going through county records, federal investigators tabulated 432 cases of sexual assault and child molestation that were not properly investigated from 2004 to 2007.

None of this, however, prevented Sheriff Joe from investigating the wife of the federal judge, G. Murray Snow, who would ultimately find him in contempt. She reportedly had information that might indicate the judge was biased. It’s worth noting Arpaio also had the owners and publishers of the Phoenix New Times, known for their critical reporting, arrested and booked on charges so trumped up that the county ultimately agreed to pay $3.75 million to settle their lawsuit. For those Arizonans who liked their law and order on the rough side, Arpaio proved an expensive habit. Over the years, he cost Maricopa County $92 million in settlements.

Looking forward, I have but three words of advice: Squint and hope. Why not? It’s how I play pool.

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