PARDONING JOE ARPAIO WOULD SET A TERRIBLE EXAMPLE

PARDONING JOE ARPAIO WOULD SET A TERRIBLE EXAMPLE
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In recent weeks there has been increased speculation that President Donald J. Trump may pardon controversial former Maricopa County Sheriff Joe Arpaio. Arpaio, who was found by two different Federal judges in two separate cases to have implemented immigration enforcement policies that were unlawfully discriminatory towards Hispanics, was recently convicted of criminal contempt of court by yet a third Federal judge. President Trump, however, has recently talked up the idea that he may pardon Arpaio, a proposition the White House press staff has done little to tamp down. If President Trump follows through on this idea, it would establish a deleterious precedent going forward for local law enforcement and reflect a disturbing lack of respect by President Trump for equal application of the rule of law.

Prior to his re-election defeat in 2016, Arpaio was the quintessential poster boy for local elected officials pursuing crackdowns on illegal immigration. Whatever noble and just intent Arpaio had in identifying individuals who had violated U.S. immigration laws and were living in this country illegally, his tactics were beyond the pale and reflected a complete lack of concern or interest in adhering to the basic precepts underlying constitutional and statutory protections. In a lengthy deposition conducted in 2009, Arpaio expressed little understanding of the principles of the Fourteenth Amendment to the U.S. Constitution and conceded that he had never read the Department of Justice guidelines concerning the use of race in investigation, guidelines that would have applied to his deputies when they originally were operating under an agreement with U.S. Immigration and Customs Enforcement. Indeed, a review of Arpaio’s answers in the deposition paint a picture of a man who delegated all substantive decision-making to subordinates whose integrity he blindly assumed to be above reproach for no particular reason.

That type of leadership style, coupled with Arpaio’s “law and order” public persona, made him a natural ally for President Trump. Like Arpaio, the president’s management style in the White House has essentially boiled down to a “make a bold policy statement and then make the lawyers figure out the details” thought process. The president has shown little interest in or understanding of the nuances of the legislative process, to say nothing of expressing any kind of respect for the judiciary when it reaches a legal conclusion with which he disagrees. Time and time again, the president has effectively dumped upon his staff and Justice Department lawyers the task of making post hac rationalizations of his statements and policy pronouncements, the facts and legal precedent be damned. Federal judges who issue rulings adverse to the president’s policy agenda are publicly shamed on Twitter as “so-called judges” endangering the security of the country.

That method of governing is difficult enough, but it is not a basis on its own for criminal prosecution. What got Arpaio into personal legal trouble was not the policies he implemented or his public statements. Rather, it was his outright and deliberate defiance of a federal court order demanding he cease the implementation of those policies. In finding Arpaio guilty of criminal contempt, U.S. District Court Judge Susan Bolton stated that Arpaio had “willfully violated an order of the court”, and that “[n]ot only did Defendant abdicate responsibility, he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.”

This type of “the rules do not apply to me” mentality is anathema to the constitutional principles upon which this country was founded. They invoke memories of former President Richard Nixon’s infamous “when the President does it, that means it is not illegal” statement. No person, elected or otherwise, is above the law or the protections embodied in the Constitution. The Constitution was intentionally designed to restrain the excesses of the two political branches, and to ensure that the majority passions of a particular moment did not permit the creation of policies to the deprivation of our liberties.

To pardon Arpaio, and justify his willful disregard of a Federal court order on the basis that he was “doing his job”, would be to send a public message that the Trump Administration will look the other way on law enforcement actions that run afoul of the Constitution.

Governing within the confines of the Constitution is hard. It was meant to be so. To dismiss those restrictions as mere impediments to an amorphous concept of “security”, however, will start us down a path from which history has shown to have disastrous results.

Joe Arpaio broke the law and should be held to account for it like any other citizen of this country. The president should not pardon him.

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