Last month, Joe Arpaio, the former sheriff of Maricopa County, Arizona, was convicted of criminal contempt for disregarding the order of a federal judge to stop detaining people merely because he suspected them of being in the U.S. without authorization.
As sheriff, Arpaio directed his deputies to hold people despite their being neither charged nor suspected of crimes. By ignoring the court that had commanded him to halt such constitutional violations, Arpaio showed a “flagrant disregard” for the rule of law, Judge Susan Bolton of the U.S. District Court in Phoenix found.
On Friday, President Trump pardoned Arpaio, a political ally who backed Trump’s presidential bid. In a statement announcing the pardon, the White House praised Arpaio for his work “of protecting the public from the scourges of crime and illegal immigration.”
Presidents have broad power to pardon. But as some scholars have suggested, the courts have yet to rule on a case where a pardon excuses conduct by officials that violates the Fifth Amendment rights of others. Writing in the Times, Martin Redish, a professor of law at Northwestern, observes:
If the president can immunize his agents in this manner, the courts will effectively lose any meaningful authority to protect constitutional rights against invasion by the executive branch. This is surely not the result contemplated by those who drafted and ratified the Fifth Amendment, and surely not the result dictated by precepts of constitutional democracy.
Picking up the theme, Bob Bauer, a former White House counsel in the Obama administration, notes that a pardon of Arpaio in the middle of a legal proceeding – Arpaio had the right to appeal his conviction for contempt – breaks with “accepted norms for the grant of pardons.”
Under Arpaio, the sheriff’s office engaged in “a pattern of unconstitutional policing,” the Justice Department found in 2008. Latino drivers were four to nine times more likely to be stopped than non-Latino drivers. Officers in the jail “discriminatorily” punished Latino inmates with limited proficiency in English who failed to understand commands in English.
The officers called Latinos “wetbacks,” “Mexican bitches,” “fu#&ing Mexicans,” and “stupid Mexicans” when either talking among themselves or addressing Latino inmates. The sheriff’s department subjected people who criticized its practices to “retaliatory” arrests.
That’s the lawlessness that landed Arpaio in court and that Trump, with his pardon, endorsed.