You can respect the rule of law or you can pardon former Arizona sheriff Joe Arpaio. You cannot do both. So if and when President Trump grants mercy to his fellow birther, his political bedfellow, his loyal partner in harassing the nation's immigrants, he'll be sending the strongest possible signal yet that the administration's tough-on-crime talk about "law and order" and a restoration of morality in enforcement is, in truth, a load of hooey.
I have covered Arpaio's antics in Maricopa County for a decade or more, and it is hard to name a more lawless lawman. He didn't just commit criminal contempt when he violated a federal court order halting his unconstitutional immigration roundups. He did so gleefully, boastfully, publicly—daring federal authorities to do something about it. And then, when they did, when federal prosecutors called him on his misconduct, Arpaio wasn't even willing or able to muster the courage of his race-related convictions. He pretended instead that he had been ignorant all along.
Inside every bully is a coward, and for decades in the desert there were few bullies as pernicious as Arpaio. He was gratuitously cruel to inmates even before he began to be unconstitutionally cruel to his Hispanic constituents. And the sad punchline is that he continues to this day to be the darling of conservatives despite the fact that he became so obsessed with harassing undocumented immigrants (and lawful ones, too) that his investigators failed to investigate violent sex crimes. Hundreds of them. This is the public servant the president praises and seeks to protect from punishment.
A pardon of Joe Arpaio would be a punch in the gut to the Justice Department, which has tried to stand up to his misconduct for years. It would be a punch in the gut to the federal judiciary, which operates under the reasonable expectation that public officials like Arpaio, who swear an oath to the Constitution after all, will follow valid court orders. Indeed, the foundation of our entire system of laws is that public officials like Arpaio must comply with valid court orders whether they agree with them or not. Without such compliance there is no law. There is only the personal power of petty despots.
Arpaio's sentencing is set for early October. He faces up to six months in jail. To pardon Arpaio now, even before his sentencing, would violate the Justice Department's own policies and procedures for clemency. A president's pardon power may be absolute but that does not mean it can be devoid of any due process. Hundreds of federal inmates with ties to Arizona been patiently waiting for some presidential relief from their unjust sentences. As they languish in federal detention they have completed all the paperwork, and shown the requisite amount of remorse and regret, and they will go nowhere with President Trump, just as most of them got nowhere with President Obama.
Arpaio, meanwhile, who has shown no remorse or regret for breaking the law and who instead pretends he is innocent when the evidence says he is not, will get to jump the line because he shares the president's political views, including the frightening notion that the federal judiciary need not be independent. That is not how the rule of law is supposed to operate. That is instead an arbitrary and capricious exercise of presidential power bestowed on a public official found to have violated his oath of office. Wouldn't you love to hear how Attorney General Jeff Sessions will try to square his push to "restore integrity" to the Justice Department with Trump's knee-jerk pardon of a man who flouted the most basic rule of constitutional ethics—obey a judge!
A pardon of Arpaio also would be a punch in the gut to those residents of Arizona who have paid the bill all these years for the former sheriff's misconduct. The tally is said to be around $70 million—and that's just for the racial profiling case. The opportunity costs of his misconduct, the skewed priorities that allowed violent crime and unsolved cases to flourish in Maricopa County, are beyond calculation. So too are the financial shenanigans that also prompted a federal review. So too is the harm Arpaio's policies caused the Hispanic community. The only thing Arpaio did well in office was to act cruelly toward those who could not effectively use the courts to fight back.
The White House reportedly is preparing papers that will justify Arpaio's pardon on grounds that he faithfully devoted himself to public service for 50 years. To Trump, Arpaio is a profile in courage, a fearless instrument of white supremacy fighting back against a brown tide of immigration. History, however, will have a much less lofty view. The sheriff's cruel and unusual treatment of prisoners and immigrants foreshadowed by decades the policies offered now by Trump and his tribunes. Arpaio's bigoted tendencies mirror those in the White House today. The lack of respect for legal norms, for the rule of law, also is present, even pervasive, in both men. The president may pardon Sheriff Joe but history will not.