This article was originally published in 2017 on my Millennial Federalist blog.
On August 25, 2017, President Trump issued a full pardon to Joe Arpaio, the controversial former Sheriff of Maricopa County. President Trump characterizes this action as embodying his promise to be the “Law and Order President.” The President not only granted Sheriff Arpaio a reprieve from prosecution for his alleged crimes but essentially endorsed the Sheriff’s behaviors by saying such things as:
“Sheriff Joe is a patriot.”
“Sheriff Joe protected our borders.”
“Sheriff Joe is a great law enforcement person.”
“He’s done a great job for the people of Arizona.”
This action stands in contrast to the characterization of President Trump as being the “Law and Order President.”
Law enforcement is a high mantle of responsibility. An officer is given the authority to temporarily suspend certain rights to investigate a crime. An officer can entirely suspend even more rights if it appears probable that the crime has occurred. It is therefore reasonable and just to expect officers to perform their duties within the realm of actual law as passed in legislation and as interpreted by the courts. This means that following the directive of the courts is not only a part of law enforcement; it constitutes a foundational principle for the legitimate exercise of enforcement authority.
Within this context, Sheriff Arpaio had made the reasonable determination that the state of Arizona and Maricopa County were facing unusual damage due to the Federal Government abdicating its responsibility to control our nation’s border. Based upon this determination, he and his counselors crafted policies designed to enforce immigration law despite the lack of Federal effort. While these are reasonable concerns, the actual policies they crafted and implemented were not deemed reasonable nor ethical by the courts. The courts then issued an order for Sheriff Arpaio to halt the implementation of such policies. Sheriff Arpaio disagreed with the court’s decision. He continued the policies, claiming it was his Constitutional right to do so as the elected Sheriff by the sovereign people of Maricopa County.
In doing so, Sheriff Arpaio violated his oath of office. He raised the middle finger to the judicial process, even flirting slightly with “sovereign citizen” mentality. Despite his claims, this anti-federalist and unconstitutional.
The courts determined that Sheriff Arpaio had enacted policies which directed sworn officers under his command to detain individuals and suspend their rights where there was no likelihood that a crime had been committed. They ordered Sheriff Arpaio to desist because he was using ethnicity and language as probable cause for arrest. The courts rightly pointed out that language and ethnicity are not proofs of citizenship. Therefore, language and ethnicity cannot be used as proofs for the lack of citizenship.
Refusing a lawful court order is the exact definition of contempt. This meant the courts and its officers had far more probable cause for charging Sheriff Arpaio then he ever had for arresting Hispanics in Maricopa County. Now, the actual elements of contempt and the nature of the situation, as well as Sheriff Arpaio’s advanced age, would have all been considerations moving forward in the appellate process. I would even argue there are sufficient grounds for repeal and possibly even retrial. But we’ll never know. The just and legal process for determining Sheriff Arpaio’s guilt has been thwarted by a Presidential pardon.
In my opinion, this pardon does not make President Trump the “Law and Order President”. In fact, it makes him the opposite. A “Law and Order President” would place a premium, above all other considerations, on the consideration of law and order. The law states the courts have the power to interpret the laws and the officers of the law must obey their decisions. Order dictates the process must be respected and justice must be given a chance to have its day.
President Trump could have allowed the process to proceed, allowed the courts, appellate courts, and possibly even the Supreme Court to hear the case and through just deliberation provide closure to the circumstances. If Arpaio was held guilty in the end, the President could have simply, and much less controversially, commuted Arpaio’s sentence, citing Sheriff Arpaio’s advanced age and years of service as grounds for the commuting. Instead of such a reasonable and equitable approach, the President offered a preemptive full pardon. This action aborted the entire appellate process. This course has provided grounds for just accusation that Sheriff Arpaio is indeed guilty of prejudice in his policies and that the President not only excuses his behavior but fully endorses it.
But, there is much more damning evidence that this is not an action a “Law and Order President” would take.
Beyond the foolishness of thwarting the process, it is even more incriminating that this pardon was clearly politically motivated (unless President Trump’s believers believe he would sign a pardon for a Sheriff held in contempt for continuing to enact “Sanctuary City” policies against a court order). A President cannot claim to be an advocate of law and order while thwarting the process of justice in order to toss red meat to his political followers. This is about a Presidential style of disruption and provocation. It has nothing to do with his respect for the rule of law.
Finally, many of Trump’s followers are making a stink about who appointed which judge. They are demonstrating a willingness to cry the demands of justice or turn a blind eye predicated on partisan loyalties. The words of John Adams, “We are a nation of laws, not men” are being turned upside down by President Trump. John Adams was a man of law and order and he saw to the fair trial of British Soldiers despite the mob calling for their blood. Trump and his followers would instead selectively apply laws upon men they deem their allies and those they deem their enemies.
President Trump is demonstrating he is quite the opposite of John Adams. He is far from the “Law and Order President” he claims to be.