Questions and Answers on Joe Arpaio

President Trump pardoned Joe Arpaio on Friday.

Here’s me, Friday night:

Huh, OK.  I guess he’s that guy who made prisoners wear pink clothes, and live in tents, and who worked to enforce immigration law, and who made enemies of those who objected to immigration enforcement.  Oh, it was for defying a judge’s order?  And his supporters say it was politically-motivated?

Now twitter is saying that he was a Bad Dude, that he was up to more than just antics in his jail, but didn’t provide proper medical treatment, created unsafe conditions, didn’t intervene when one inmate attacked another, said, “these are bad people in jail, criminals, they deserve this treatment.”

And twitter is saying that Trump should be impeached for his actions — yeah, well, in the same way as other pundits claimed that his Charlottesville remarks merited impeachment because he didn’t uphold “American values” sufficiently.

Then twitter says that since the Left is really, really mad, and, besides, Obama pardoned Manning and that FALN terrorist, and Clinton pardoned Marc Rich, then maybe the Arpaio pardon isn’t such a bad thing, insofar as it’s a big middle finger at the Left.

So:

Is this grounds for impeachment?

No, of course not.  There are two scenarios in which Trump could be impeached.  In the first case, Trump is determined to have committed an actual, proveable crime.  Perhaps Mueller finds a smoking gun, some concrete evidence that Trump sought aid from the Russians and promised favors to them in turn.  In the second case, Democrats gain enough power, or Republicans turn against Trump to such a degree as to be willing to impeach him for fundamentally political reasons.  But there is no doubt that the presidential power to pardon has no constitutional limits, even if there are customary practices.

One of the articles I’ve come across claimed that the Trump pardon was an impeachable offense because Arpaio’s offense was violating a court order, so that the pardon was itself an offense against the judiciary — but (a) the court order was ultimately in place not because of some independent judicial power, but as an action to ensure that Arpaio followed the law, and (b) the judiciary doesn’t hold any particularly “special” place within the American system of government; one might say that any pardon is an offense against the legislature that created the law that the pardonee broke.

Is Arpaio an ***?

Yes, of course.  His list of misdeeds (e.g., at Wikipedia) is lengthy.

Many people on twitter are saying “I had no idea what he was up to.”  And a part of that is because of the focus on his immigration actions.  An article in the Tribune on Sunday  (online at the Los Angeles Times) reported the story with exactly that angle —

The pardon of Arpaio — who was convicted of criminal contempt in July for flouting a court order to stop racial profiling of Latinos while he was sheriff — has galvanized Trump’s political base around an issue that was at the center of his presidential campaign.

But for civil rights advocates, who believe that local authorities should not enforce federal immigration laws, the pardon was an endorsement of illegal tactics and will only serve to deepen racial tensions.

— leading readers to believe that it really is all just about politics.  To be sure, the article took the perspective that justice was served with Arpaio’s conviction, but was written in such a way as to give readers the impression that it was really all just about whether one believed illegal immigration was OK or not.

Should Arpaio have rotted in jail for his abuses in his office, regardless of whether he was guilty of the specific crime at hand or not?

No.  That’s not how the legal system works.  Yes, Al Capone was convicted of tax evasion, but he served the criminal sentence applicable to that crime, not to the murders that he is known, but not proven in court, to have ordered.

Would he have rotted in jail in the first place?

That’s what I can’t quite figure out.  Was he at a real risk of being given that 6 month sentence?  (He presumably would have served it in a federal prison, not a county jail, right?)  My guess is that, no, he would have been given a suspended sentence, or community service, or the like.  And the reason why I make this guess is the timing of the pardon.  Why did Trump not wait until Arpaio had been sentenced?  It would seem to be better PR to do so, to then decry a court system that imprisons an 85 year old man.  Perhaps Trump just didn’t have the ability to wait, but it seems to me to be likely that he knew that he couldn’t wait, because if he waited, he’d end up with a very weak use of his pardon power, that rather than serving as a bone to his base and a middle-finger to Jeff Flake, it would just leave people feeling bewildered.

Is there any doubt that Arpaio was guilty of the crime for which he was convicted?

That’s where I wanted to wait until I could figure things out a bit more.

Here is, after all, the Fox News point of view (OK, presented as an opinion piece, like any other):

President Trump stood up for justice and for enforcement of our immigration laws when he courageously granted a pardon Friday to Joe Arpaio, the former sheriff of Maricopa County, Arizona. Despite knowing he would face criticism, the president did what was right.

Arpaio was convicted by a federal judge in July of criminal contempt after being charged with violating a court order that attempted to prevent suspected illegal immigrants from being targeted by the sheriff’s traffic patrols. The sheriff acknowledged continuing the patrols, but said that targeting was not the focus.

Hearing testimony during Arpaio’s trial, I realized that any reasonable person who was there to pass judgment on this honest law-abiding man – who gave his life to the rule of law – could never have found him guilty on the evidence presented.

And perhaps there are disputes about the law, but from what I’ve read, it seems rather unlikely that the conviction was unjust.  There seems to be widespread consensus that Arpaio’s wrong-doing was clear and his defense weak.

Here’s the Atlantic:

For years Arpaio’s deputies had performed what he termed “crime-suppression operations,” which involved sending dozens of agents to a neighborhood, oftentimes poor and heavily Latino areas, to pull people over for minor infractions. The ultimate goal of these operations was to ask people’s legal status, then turn them over to federal authorities for deportation. As part of a three-year investigation into Arpaio’s office, these sweeps were found to be based largely on racial profiling, and Arpaio was ordered to stop.

Arpaio had conducted the sweeps under the federal 287 G Program, which enables some local law-enforcement offices to act as quasi-immigration agents. In 2009, the federal government rescinded this power, but Arpaio refused to stop.

Why did the federal government rescind this power?  Because Obama took office. Was it the right thing for the federal government to have done?  That’s beside the point.

The National Review summarizes this well:

In this case, the facts are that Sheriff Arpaio repeatedly flouted court orders and detained aliens on suspicion of being in the United States illegally, which is not a crime under federal law (it’s a civil offense).

Even if one believes it should be a crime, Congress has not criminalized it. Even if, moreover, one believes that the states should have the sovereign authority to criminalize trespass by aliens in the country unlawfully, the federal courts have thwarted them. Law officers are bound to enforce the law as it exists, not the law as they would have it. Furthermore, if law officers believe court orders are incorrect, their remedy is to challenge them through these constitutional procedures, not to flout them. The rule of law depends on it.

Which makes Arpaio into a quasi-vigilante.  No differently than a private citizen aiming to fight crime, he was trying to “fight crime” in ways that he didn’t have the authority to do.  And, yes, if you’re an ordinary citizen watching the debate on illegal immigration play out, and seeing the government openly profess, under Obama, that it will leave illegal immigrants unbothered, to build lives with under the table jobs and false IDs, as long as they don’t commit any felonies (other than ID theft, to the extent that this is a felony), it’s infuriating, and it continues to be infuriating to see state and local politicians profess the same thing now, that these people are welcome to live in Chicago, and New York, and California, and we’re happy to have them there, with their fake Social Security cards a trivial inconvenience.  But that’s not grounds for violating the law.

On the other hand, yes, there are some things about the whole case that are a bit unsettling.  There was no jury trial, because he was charged with an offense for which the maximum sentence was 6 months.  Did he get a fair trial?  My expectation, though, is that this would have sorted itself out in the appeals process.  But at the same time, I do admit that I simple don’t have the time, on a day-to-day basis, to dig into whether his defense has any merit, nor do I have the legal knowledge to assess those claims.

What about the fact that Clinton and Obama had unjust pardons?

Yeah, so what?

Maybe this experience will be the impetus for a move to creating a statutory review process for pardons, but let’s face it, that would require a constitutional amendment, wouldn’t it?  Is there really the energy out there for the amendment process?  And in the meantime, it’s a terrible approach to government to say, “however dirty and devious your guy was, that sets the standard for our guy.”

After all, Trump himself really seems to have no moral compass, no personal sense of ethics, and instead takes the approach that “all politicians are corrupt, so as long as I’m somewhat less corrupt than my image of how politicians behave, then I’m OK.”

Image: https://commons.wikimedia.org/wiki/File%3AJoe_Arpaio_(28735510385).jpg; By Gage Skidmore from Peoria, AZ, United States of America (Joe Arpaio) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons