Last Thursday, the latest chapter in the saga of former Sheriff Joe Arpaio unfolded in an Arizona courtroom when Federal District Judge Susan Bolton refused to erase his conviction for criminal contempt.
Arpaio's request to "clear his name" came on the heels of President Donald Trump's pardon in August, which spared the controversial sheriff from being punished for his crime. Arpaio was convicted for refusing to halt a pattern of blatantly unconstitutional acts in which immigrants were detained solely on the suspicion that they were in the country illegally and in which no criminal charges could be filed.
Bolton called the former sheriff's effort to erase the record of those acts an attempt to "revise the historical facts."
Such attempts to revise history and obliterate memory have become common in the Trump era. Examples include the president's claims about the size of the crowds at his inauguration, his remarks after the Charlottesville tragedy and his insistence that no president has accomplished more in his first nine months in office.
Some commentators suggest that the president is simply ignorant about the past or indifferent to it. But more is involved than either ignorance or indifference. Trump seeks to undo history wherever it contradicts his preferred version of reality.
His effort is a characteristic feature of totalitarian regimes, and threatens democracy and the rule of law in the United States. As the political theorist Hannah Arendt noted, "Even if we admit that every generation has the right to write its own history, we admit no more than that it has the right to rearrange the facts in accordance with its own perspective; we don't admit the right to touch the factual matter itself." Trump consistently touches "the factual matter itself" when he reinterprets the present and when he misrepresents the past.
The connection between Arpaio's request and the Trump administration was made clear when the Justice Department supported his quest to expunge his conviction. This step was quite unusual not only because the department was responsible for initiating the original case against Arpaio (admittedly, under the prior administration), but because it ignored long established legal practice governing pardons and requests to expunge a criminal record.
With respect to the effects of a pardon, the courts consistently have said that accepting a pardon in and of itself is a confession of guilt and "the grant of a pardon does not wipe out the record of a conviction." To allow a pardon to do so would be incompatible with the separation of powers that is foundational to our constitutional system. It would grant the president the power to "tamper with judicial records."
This threat to the separation of powers is consistent with Trump's expansive view of executive authority and his willingness to trample norms or procedures which constrain that authority. As one commentator recently noted, "The expansion of executive power has been a trend in the modern-day presidency … But no president has shown such total disregard for the separation of powers as Trump. None are even close."
Beyond the threat to the separation of powers posed by the Justice Department arguments, there was nothing about Arpaio's case that remotely would justify expunging his record. Courts have held that because a defendant who seeks expungement always is asking for a "judicial editing of history," the power to expunge the record is "a narrow power, appropriately used only in extreme circumstances."
In no case has expunging the record been ordered "(1) where the circumstances of the conviction have not been challenged, or (2) on the basis of a pardon following an unchallenged or otherwise valid conviction."
Circumstances that have justified erasing the record of a criminal conviction include when an arrest or conviction was determined, at the time, to be based on a violation of the Constitution, when a law under which someone was convicted is subsequently declared unconstitutional or when an arrest was made solely for the purpose of harassment or intimidation.
None of those circumstances were present in Arpaio's case. Indeed, Trump's Justice Department lent its support to someone with a long record of violating the Constitution and arresting people solely to harass and intimidate them.
Reacting to Bolton's decision, Jack Wilenchik, one of the former sheriff's attorneys, promised to appeal to the Ninth U.S. Circuit Court of Appeals. As the Arpaio case goes forward, there is a lot at stake not just for him, but for all of us. The novelist Milan Kundera famously observed, "the struggle of man against power is the struggle of memory against forgetting." The American judiciary needs to lend its support to that struggle.
Our courts, as well as the Justice Department, should defend the civil rights that Arpaio violated and oppose government officials who willfully disobey court orders. We need judges to join Bolton in standing up to a president seemingly intent on weakening our democracy and the rule of law, just as we need citizens who will not stand idly by as president and his cronies try to get away with rewriting history.
Originally published US News and World Report, October 23, 2017