The Weiner Component V.2 #31 – The Significance of the Arpaio Pardon

Map of Arizona highlighting Maricopa County

Map of Arizona highlighting Maricopa County (Photo credit: Wikipedia)

On Friday, August 25, 2017, President Donald J. Trump pardoned the misdemeanor conviction of Joe Arpaio, the former sheriff of Maricopa County, Arizona.  He was found guilty of criminal contempt by a Judge after illegally targeting Latinos, a group that constitutes about 1/3 of the population of Arizona, as illegal immigrants.  The sentencing phase of his trial was due on October 5, 2017.  He could have gotten up to six months in confinement.


Apparently Trump did not clear the pardon with his Justice Department.  He assumed that as President he could just issue a pardon.  While Arpaio may have acted criminally as sheriff he was not accused of breaking any law.  Instead he was found guilty of criminal contempt.  He has systematically refused to obey Court Orders.  This was his crime.


The government of the United States is set-up in three parts.  Each of the parts serves as a check upon the other two sections.  Trump pardoned Arpaio of refusing part of the system of checks and balances.  Basically he abrogated the power of the Courts given to them by the Constitution.  Does the Constitution give him the power to weaken itself?


Listening to Trump and Arpaio after the pardon had been issued one got the impression that neither of these two understood the significance of the Constitution.  Both spoke of the case having gone away like it never existed.  When former President Richard Nixon accepted a pardoned in 1974 from then President Gerald Ford, even though he had never been tried or convicted of any crime, he acknowledged that he was guilty of participating in the Watergate burglary and cover-up.  Former sheriff Joseph M. Arpaio, by accepting Trump’s pardon, officially admitted that he was guilty of the Contempt of Court charge, that he had practiced racial profiling as sheriff and had refused to follow court orders to stop the practice, that he, in a manner of speaking had abrogated the concept of checks and balances between the three different parts of government: the administration, the legislative, and the courts.


With Trump’s pardon the criminal case had presumably ended.  Arpaio’s pardon was an admission of guilt. By accepting the pardon Joseph Michael (Joe) Arpaio had admitted guilt; he had made innumerable arrests and jailing’s based upon racial profiling.  This action would also be true for all people of color.  I would assume that virtually every Latino and Black who had been arbitrarily stopped, hassled, possibly arrested and jailed in the years from 1993 to 2016, the years Arpaio was sheriff, could sue both him and the county for racial profiling.  In fact it would make a splendid class action suit.  The ACLU or even some private law firm could take the case.  To date there have been over 44 million dollars paid out to individuals that Joe Arpaio had had arrested, jailed, or otherwise mistreated.  This included newspaper reporters to Latinos who were born and live in Maricopa County.


One should also keep in mind that according to the July 1, 2016 Census the state of Arizona has, out of a population of 6,931,071, 30.9% Latinos.  We should also keep in mind that at that time 4.9% of the population was Black.  That means that just from his own state he had about two million, four hundred and ninety thousand people upon which to pick.  I would also suspect that even though the majority of the state votes mostly Republican there has been quite a lot of voter suppression.


A massive class-action law suit, particularly one in the billions of dollars, would send a very clear message throughout the United States.  If racial profiling became too expensive it would definitely be dropped throughout the nation.


Sheriff Joe Arpaio is 85 years old.  He has been the country’s “toughest sheriff,” according to his own testimony, from 1993 through 2016, for 23 years.  He was voted out of office in 2016.  He had served 6 terms.


Starting in 2005 Arpaio took an outspoken stance against illegal immigration.  He is also known for his investigation of former President Barack Obama’s birth certificate.  After sending, at taxpayer expense, one or more investigators to Hawaii to examine the President’s birth certificate. Since they found one he claimed it was forged.


Arpaio has been accused of various types of police misconduct, including abuse of power, misuse of funds, failure to investigate sex crimes; improper clearance of cases, unlawful enforcement of immigration laws, and election law violations.  A Federal court monitor was appointed to oversee his office’s operations because of complaints of racial profiling.  The U.S. Department of Justice concluded that Arpaio oversaw the worst pattern of racial profiling in U.S. history and filed suit against him for unlawful discriminatory police conduct.


Over his law enforcement career Arpaio cost the county over 44 million dollars in lawsuits over illegal abuses perpetrated upon the press and citizens.  In essence Joseph Michael Arpaio ruled Maricopa County, Arizona like a little Hitler, interpreting the law to fit his prejudices.  This is the man that on August 25, 2017, President Donald Trump pardoned from a possible six month incarceration.


Despite numerous Court Orders to end racial profiling Joe Arpaio continued the process, essentially ignoring Court Orders.  In 2016 Arpaio lost the election for sheriff. The office went to the Democratic candidate, Paul Penzone with 56% of the vote.  Arpaio received 44%.  Apparently the sheriff wasn’t able to frighten away enough minority voters in that election.


U.S. District Judge Susan Bolton in another hearing said that evidence demonstrates that Arpaio’s “flagrant disregard” for another Judge’s order that halted Arpaio’s signature immigration roundups, was guilty of illegal action.  The sentencing phase was to begin October 5, 2017.  Arpaio faced up to six months in confinement for ignoring the order.  The contempt charge was a misdemeanor.  Since he had committed a Federal crime he presumably came under the jurisdiction of President Trump.  Trump pardoned him stating that he had spent years enforcing the laws and he should be rewarded not punished.


Why did Trump pardon Arpaio?  For one thing they had both several years earlier denounced President Barack Obama as not being born in the United States.  They had both presumably sent people to Hawaii to prove this, Arpaio literally and Trump only verbally.  In addition it would seem that Trump was sending a message to all his relatives and cohorts that if they were arrested and tried for any crimes he would pardon them.  This included any of his supporters who had had relations of any sort with Russia both before and during the Presidential Election of 2016.  It could include both family members and participants who helped him get elected.  The special counsel, Robert Mueller, has been investigating the election and has impounded two separate Grand Jurys.


According to John McCain, Joe Arpaio was found guilty of criminal contempt after illegally targeting Hispanics.  Trump’s pardon “willfully violated” a 2011 Court Order barring him from detaining individuals solely on suspicion about their legal status based solely on their ethnicity.  The President undermined professed respect for the rule of law.


McCain stated, “No one is above the law and the individuals entrusted with the privilege of being sworn law officers should always seek to be beyond reproach in their commitment to fairly enforcing the laws they swore to uphold.  Mr. Arpaio was found guilty of criminal contempt for continuing to illegally profile Latinos living in Arizona based upon their perceived immigration status in violation of the judge’s orders.”


Obviously the move was blatantly political.  Arizona’s leading newspaper as well as many others in the state denounced Trump’s move.  “The vast majority of Latinos in Arizona are not undocumented, yet they all fell under heightened scrutiny, “the editorial stated.


Trump’s pardon occurred while a hurricane was approaching Huston, Texas.  The President announced it then, he said, because it would get the most media coverage at that time.


While the Constitution gives the President the pardoning power it does not define the extent of this power.  Trump apparently interpreted it to mean unlimited power to grant pardons.  But the Constitution was set up with a system of checks and balances which, in turn, keep any one segment of the Federal Government from taking over control.  There is an executive, a legislature, and a court system.  Each serves as a check upon the other two parts of the Federal Government.  When Trump pardoned Arpaio he encroached upon this system of checks and balances.


Arpaio was not forgiven for breaking a law, which he did do, but for invalidating a Court Contempt charge.  He pardoned a legal decision by a Judge.  In doing this he abrogated one of the checks and balances of our legal system.  Does he have the authority to do that?


Judge Susan Bolton of the U.S. District Court, handling the Arpaio’s case has cancelled a sentencing hearing for the former sheriff but stopped short of throwing out his conviction.  She stated that because a presidential pardon carries the implication of guilt she wants both Mr. Arpaio’s lawyers and the U.S. Department of Justice to submit briefs on why she should or should not vacate Mr. Arpaio’s conviction.  The arguments have been scheduled for October 4th.    She will make a decision at that time.


In addition House of Representatives Democrats on the Judiciary Committee are demanding a hearing on the Arpaio pardon.  Mr. Arpaio is also currently appealing his conviction.  Appeals and pardons cannot occur at the same time.  The case is far from being over.  It has yet to be determined if the pardon was legal.


Was the pardon legal?  The Constitution gives the pardoning power to the President.  It does not define that power.  Up to that decision all pardoning cases dealt with the breakage of a law brought into existence by the legislative body, Congress.  This case deals with a Court decision.  That power is inherent in the Constitution.  Does the President have the power to override a power given by the Constitution?  That ultimate decision rests with the Supreme Court, the ultimate definer of the Constitution.  Whatever Judge Susan Bolton decides, the case will be appealed to the Supreme Court.  There five Justices are conservative and four are liberal.  However two of the conservative Justices, Kennedy and Roberts, have occasionally voted with the four liberal ones.  In any case will the Supreme Court vote to limit its own power?