Joe Arpaio Pardon

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I'm not a Judge Arpaio fan or foe. When it comes to the law, I care about whether this case is just or not.

Some of his ideas about justice aren't horrible, in theory. The idea if it's good enough for our troops, then it's good enough for prisoners, isn't completely wrong. Nor are his ideas of you either enforce the laws (including immigration laws), or you make a mockery of justice.

Some of his implementations, seemed over the top to me. Righteousness can go too far. And being right on one thing, doesn't mean you're not wrong on many others. Did he take it too far, did he get looney on some conspiracy stuff, did he ignore sex crimes like Obama ignored IRS abuses of conservatives? And so on. There's certainly a case to be make that he wasn't Saint Joseph. And I am not a fan because he's a bit too cavalier with civil rights (and a bit too arrogant and blow-hardy). But none of that is relevant at all.

The thing that matters in his Pardon, is none of that baggage that others want to bring to the table, but just whether he was being treated fairly in this case or not. And whether the President was right to pardon him (justice was more served by throwing an octogenarian in prison, or was him losing his job and leaving in disgrace enough?).

Background

Arpaio was Maricopa County Sheriff for 24 years, from 1993 through 2016, and he was called “the toughest sheriff” in the USA. He was an outspoken and polarizing figure (on many topics) that the left hated for all of his positions (good or bad). And he was voted out of office on November 8th, 2016 -- and would have ridden off into the curmudgeons prison in the sky, if not for the revenge of leftist judges, mad that a Sheriff would enforce the laws as he interpreted them (too enthusiastically), instead of just blindly cow-towing to a lower courts questionable rulings.

During his tenure as Sheriff, he was known and loved/hated for the following policies (often around Jail reform or immigration enforcement):

  1. He used food rescue services to cut food costs
  2. He instituted a "Pink underwear" policy which saved $70K due to theft reduction
  3. He outraged the left by forcing Selective Service registration for prisoners
  4. He banned "sexually explicit material" after prisoners were openly fapping (masturbating) to the annoyance of female prison staff (a case that he wrongly lost on faux 1st Amendment grounds)
  5. He created a Tent City Prison -- basically saying that if it was good enough for our troops in Iraq, then it was good enough for our prisoners at home. And of course far lefties like Amnesty International claimed it was a violation of civil rights to do so. (They didn't win any case against him on that).
  6. He instituted volunteer chain gangs (basically special considerations for those that chose work over sloth)
  7. He created a Sheriff's posse to work with civilians on enforcing border security - a case that he wrongly lost (Melendrez v. Arpaio) in Federal Court.

On the other side of the fence he did some more sketchy things:

  1. He aggressively investigated Abuse of power by the Mayor, Arizona Attorney General, County Board of Supervisors, Judges, Attorney's. And while he got quite a few convictions, he also got backlash and abuse of power investigation thrown back at him. With one judge scolding him for misuse of power against the Board of Supervisors, and the FBI and Arizona U.S. Attorney's office "closing its investigation" without any criminal charges levied.
  2. Failure to investigate sex crimes -- there was a high case load, and some of the prioritization may have made sense. But it wasn't rectified even after special funds were supposed to be directed for just those cases.
  3. He was caught in more than a few non-criminal cases of misuse of funds
  4. A 63-page internal memo written by Maricopa Deputy Chief Frank Munnell, was made public that alleged years of misconduct and mismanagement by Arpaio's second-in-command and other top MCSO officers. Arpaio forwarded the memo to the Pinal County Sheriff's Office, requesting they conduct an administrative investigation -- others claimed that Arpaio knew of the acts alleged in the Munnell memo and had done nothing to stop it.
  5. There was a staged assassination plot where 18 year old James Saville made a pipe bomb to blow up Arpaio, however, MCSO detectives had bought the bomb parts themselves, and convinced Saville to build it, thus the whole case was thrown out on entrapment.
  6. There were people who really didn't like being imprisoned in tents in the desert (that it was too hot/cold/miserable) and that he was "violating their civil rights".

The biggest thing he was hated for is Immigration law and "racial profiling".

The Case

The left hated the idea that Joe might enforce immigration law. While there had been a few failed attacks before, once the Democrats came to power in the Obama Administration, the witch hunt began in earnest. (Joe's outspokenness certainly made himself a target).

The case was assigned to Judge Snow, and there appeared to be no love lost between Arpaio and Snow. Basically, Snow didn't like the idea of a local sheriff enforcing immigration law, and was going to put him in his place. And Arpaio didn't take kindly to a judge interfering with his police work and investigated Snow back for any improprieties (which of course isn't a way to make you a fan of the court).

So the ACLU lawsuit Ortega Melendres, et al. v. Arpaio, et al., that Snow presided overr ruled because the cops had taken calls by people that sounded like they were racially profiling (while complaining about questionable or criminal activity), the Police were guilty by proxy of profiling since they had responded to those calls. Thus the valid arrests made by following up on those questionable calls, were considered "illegally detained Latinos, violating their constitutional rights" since they were first investigated based on racial profiling. Plus in an area that was heavy latino, there was a lot of latino stops (compared to the national average).

Think that one through. So someone screams to 911, "some beaner/N-word is breaking into my home and stabbing my wife, come quick", or more in this case, "Some Mexican guy is swerving in the road, ran a stoplight and cut me off", and if the cops respond, that's considered the cops were racially profiling and violating the criminals civil rights, according to the ACLU and Judge Snow. The cops were supposed to not answer any calls that were too politically incorrect or sounded like the caller was racially profiling, or they'd be guilty of racial profiling by proxy.

Arpaio appealed to the Ninth Circuit, but they're known for being one of the more partisan-left-leaning courts in the nation, and thus they upheld the highly questionable ruling.

So based on that bad civic ruling that had little direct evidence, Judge Snow issued an order mandating necessary changes by Arpaio and his agency to "prevent continued misconduct and safeguard the community from future violations of their constitutional rights". By allowing enough auditing that he could tell if actual abuse was happening in the future.

He ordered Arpaio to keep audio and video recording of all traffic stops, to send his folks to P.C. racial sensitivity training/programming, to radio in the basis for each traffic stop before making contact with the people in any vehicle, and so on.

Arpaio and the MCSO basically ignored that judicial overreach by a civil (not criminal) court, and considered that legislating from the bench. It does sound like a judge playing Police Chief, and deciding what policies should be enacted based on a very questionable interpretation of the 14th and 5th Amendment.

Personally, I can imagine a hard-assed guy like Arpaio did have an attitude that allowed a few overzealous cops to stop and frisk and do things. But a bench trail should be about the actual evidence, not the imagined wrongdoings. And it's still a bit of overreach to just rewrite all the police engagement procedures from the bench.

When Arpaio complied with the minimum (in his eyes), and didn't comply with the minimum in the judges eyes, the Obama administration pounced. They didn't go for civil contempt of court (since this was a civil trial), they politicized it and jumped on a criminal contempt of court by a Clinton Appointee Susan Bolton, who was also on the left side of many other immigration rulings, in what many feel was a politically motivated attack on Arpaio. Basically, the left side felt that by continuing to enforce immigration laws, and not complying with changes in policy demanded by a civil court, he was guilty of a high crime.

Before Sentencing in October (where he could have gotten 6 months in jail), Trump stepped in and gave Arpaio immunity.

Some claim Trump was committing a political act. But they're ignoring that it was multiple political acts that lead to his conviction in the first place, which was the crime of enforcing immigration law.

Again. I have no problem with people that think Arpaio violated people's civil rights. He was NOT a civil libertarian. He was an elected hard-assed Sheriff, that if he didn't cross the line, wasn't afraid to walk up to it, and scream obscenities. So you can hate him for his civil rights positions. But he wasn't nailed on those. He was nailed for not complying with fuzzy terms on how to rectify them, by a judge imagining he was a policy maker. That's important. Everyone that's screaming he violated the civil rights, is ignoring that his was a civil suit (lower bar) and that's not what he was in trouble for.

Dan McLaughlin‏

I thought Dan McLaughlin‏ did a great job of capturing the basics in his twitter storm[1] (which I capture, and reformat and add commentary to, below):

Politics of it aside, Arpaio pardon turns on two questions.

First: your view will turn heavily on if you agree with Arpaio on the policy

If you think Arpaio was acting in a way that's completely indefensible in the absence of a court order, there's no reason to use pardon.


Trump clearly doesn't think that (nor does much of his base). From that standpoint, Arpaio's conviction is political: a court rejected the policy, and used its power to stop it.
 Arpaio was not convicted of any individual crime or of breaking a criminal law, but of using his office to defy a federal judge.
Of course defying a federal judge is illegal! Otherwise, we would not be discussing the pardon power.


Second: whether it undermines the rule of law to use a pardon to let a state official off for defying the court

This is where liberals should picture, in place of Arpaio, someone pursuing a cause that liberals sympathize with vs a hostile judge.


Pardons of that nature were, IIRC, used by Jefferson for violators of the Alien & Sedition Acts. Carter pardoned Vietnam draft dodgers.
 Obama, of course, pardoned a Puerto Rican terrorist. (Extreme case: South Africa releasing Mandela, who was guilty under the law.)


I'm skeptical of using the pardon power this way, but if you think a federal judge went too far in a fight over government powers, it becomes easier to view the pardon as the Executive's natural weapon to fight back vs the courts. Which the Founders anticipated.


Some of the outrage here is simply view that Arpaio had no possible justification, of course. Fair enough. But the reflexive view that the Executive should have no place to use pardons to undermine judicial supremacy is too facile.


This isn't Terry McAuliffe dispensing pardons in bulk just to get people on the voter rolls. This is fundamentally a policy dispute.


Not having closely followed the Arpaio arguments, I'm skeptical of the pardon, and no fan of Arpaio. But there are weighty issues here. As usual, we shouldn't be quick to toss over the proper rules of the road on thorny issues just because it's Trump & he's being Trump.

Pardon Me

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Presidents use the Pardon for political reasons (bad laws or judges getting out of control).

  • Obama went crazy with the pardon pen, because he didn't like state and federal drug laws -- and freed thousands of people.[2].
  • Obama gave "executive privilege" to Holder (who was obstructing justice in Fast and Furious) and was later held in contempt of congress for lying)
  • Obama pardoned Bradley Manning a traitor who stole and leaked 20,000 top secret documents.
  • Obama freed/pardoned 180 Gitmo Terrorists, with about 40% of them went back to terrorism (that we know of).

So like it or not, this kind of thing is nothing new, as is actually what the statute is for (so one party doesn't get to railroad their political enemies, indefinitely).

So I have no problem with people that want one standard. If they were screaming from the rooftops about the abuse of pardons by Obama, then I'm certainly fine with their consistent complaints against Trump. But that's not what happened. 99% of the Press that had no problem, or celebrated, Obama's far bigger overreaches, suddenly find this grounds for impeachment and the most horrible thing ever. Why? Because they hate Arpaio, Trump or Immigration law. So hypocrites (and their sheep) should be called what they are.

I don't mind which side of that people come down on. I don't mind if they like/hate Arpaio. I just mind that they get the basics of what this fight was about. This was not Arpaio rounding up all brown-skinned people and kicking them out, or most of the things I hear the media misleading their base on. This was much more focused, and about how much punishment an ex-Sheriff should get because he wasn't as enthusiastically compliant with the Obama administration and their interpretation of immigration policy. The crime he was being punished for was not doing what a Judge told him to, in a highly debatable civil ruling. And since Arpaio was no longer in a position to break or comply with the law, the ruling wouldn't have impacted a single person or had anything to do with civil rights.

One of the major purposes of the pardon was to prevent one administration from punishing their political enemies, without the next one being able to free them. And that's exactly what happened here.

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