Talk about a metaphor. Sheriff Joe Arpaio was limping toward me on his way out of federal Judge G. Murray Snow’s courtroom in downtown Phoenix, following a recent hearing before the jurist.
Snow, the trial judge in the landmark civil-rights case Melendres v. Arpaio, had signaled, for what seemed like the umpteenth time, that he is likely to ask the U.S. Attorney’s Office to prosecute the sheriff and three of his underlings for criminal contempt. A decision could come as early as this week.
Serious stuff, but I couldn’t help myself.
“What’s with the limp?” I queried the sheriff. “You trip over Donald Trump’s hair?”
One of his bodyguards, in plainclothes nearby, laughed. Arpaio had spoken at the Republican National Convention the night before — a prime-time address during which he’d read stiffly from a teleprompter, telling the nationwide audience that we need a leader like Trump who will “protect our borders and enforce our laws,” and, of course, build the Great Wall of Mexico on our southern border.
Never mind that Arpaio has ridiculed the idea of trying to seal the border with fencing many times in the past. As recently as 2013, he scoffed at the notion, telling Fox News host Stuart Varney, “You’ll never secure the border. You want to put up more fences, [they’ll] sell more ladders to hop over.”
Arpaio basically said the same thing in his 2008 book on illegal immigration, Joe’s Law. Instead he touted “interior enforcement,” the kind he’d engaged in on a massive scale in Maricopa County with sweeps of Latino communities and raids of businesses employing illegal immigrants: rounding up the brown en masse, then turning them over to either U.S. Immigration and Customs Enforcement or the Border Patrol for possible deportation.
But transforming his agency into a mini-ICE had dire results for the sheriff, from the ACLU’s Melendres lawsuit to Snow’s injunction prohibiting Arpaio from enforcing civil immigration law to the judge finding the sheriff’s office guilty of widespread racial profiling to Arpaio’s defiance of Snow’s orders to Snow citing Arpaio for civil contempt. And, now, to the specter of criminal prosecution.
Perhaps distracted by such weighty matters, Arpaio didn’t catch my attempt at levity. But I wasn’t about to let him off easy. As we ambled toward the elevators, I asked him what he thought of a new poll by local Republican strategist Nathan Sproul that shows him trailing Democrat Paul Penzone, his rival in this year’s race for sheriff, by four points.
“Three points,” Arpaio growled, correcting me.
Well, three points if the undecided respondents in the survey are allowed to choose “undecided.” When pressed to make a decision on a follow-up question, those same undecideds broke for Penzone by about 52.3 to 47.7 percent — a 4.6 percent spread.
In 2012, when Arpaio and Penzone last squared off, a third candidate in the race, running as an independent, pulled the same number, 4.6 percent, while Arpaio barely got a majority, 50.7 percent, with Penzone coming in at 44.7 percent.
This year, there’ll be no third wheel. A dark-horse Libertarian candidate was kicked off the ballot in June after the Penzone camp successfully challenged his signatures in court. (Forgive me for looking ahead; an Arpaio loss in the primary seems unthinkable.)
“Ah, that guy hates me,” Arpaio said, meaning Sproul. For the sheriff, that was sufficient to dismiss the poll.
I asked Arpaio if, considering the hearing he was leaving, there was any irony in his speech at the convention, wherein he’d heralded Trump as the restorer of law and order. After all, a criminal conviction for contempt could land the sheriff in the hoosegow for six months or longer.
Arpaio replied gruffly, looking me in the eye. “I do my job.”
As if that explains everything.
The fact is, after the Obama administration stripped the MCSO of its authority to enforce civil immigration law in 2009 (a power that George W. Bush’s prior regime had granted), it was no longer his “job” to chase the undocumented and harass Latinos. (Note: Arpaio lost his "street" authority in 2009, that is, his patrol officers' ability to enforce civil immigration law. In 2011, ICE jerked the same authority as exercised by jail staff, though ICE agents continued to maintain a presence in Joe's jails.)
And in December 2011, when Snow issued a preliminary injunction in Melendres, ordering the MCSO not to detain individuals based solely on the suspicion that they might be in the country illegally, that should have settled the issue.
But Arpaio publicly thumbed his nose at Snow, telling the media on numerous occasions that he would continue to, ahem, do his job. The MCSO persisted, even after the injunction was upheld on appeal by the Ninth Circuit and after Snow made it permanent in his 2013 ruling against the MCSO.
As the result of a 21-day contempt trial last year, Snow issued findings of fact in May, blasting Arpaio and his henchmen for “willfully” defying his orders, for lying to the court-appointed monitor, for hiding evidence from the court, and for intentional misstatements under oath during the contempt hearing itself. (Three others are up for possible criminal contempt charges: Chief Deputy Jerry Sheridan, Captain Steve Bailey, and former Arpaio attorney Michele Iafrate.)
During the July 22 hearing to address possible criminal charges, Snow stood gravely at his podium, shooting down any attempts by attorneys to dispute his findings of fact.
Wisely, Arpaio’s criminal lawyer, former U.S. Attorney Mel McDonald, avoided this route, instead choosing to beg for mercy for his client, whom he depicted as an exemplary public servant “in the twilight of his career, in the 84th year of his life.”
Civil contempt was enough of an embarrassment for Arpaio, McDonald argued. And the judge’s recent order of sweeping new reforms for the MCSO’s internal-affairs division, the enhancement of the authority of Snow’s monitor, and the appointment of an independent investigator and an independent disciplinary authority to look into botched IAs, is enough to ensure that Arpaio and his minions will play nice from here on out.
But Snow was having none of it, pointing out that Arpaio and Sheridan had “lied to my face” in court and under oath. If that and their pattern of obstructionism didn’t meet the bar for criminal contempt, what did?
Arpaio might be in the 84th year of his life, but my guess is that the sheriff is playing the long game here. And that’s where his backing of Donald Trump comes in.
The late Gore Vidal once quipped that one should never miss a chance to have sex or appear on television. Arpaio embodies the latter half of that dictate. His endorsement of Trump garnered him priceless airtime this past week, which, in turn, will enrich his already sizable campaign war chest.
The payoff isn’t lost on Snow, who tied it all up in his findings of fact when he wrote that “Sheriff Arpaio knowingly ignored the Court’s order because he believed that his popularity resulted, at least in part, from his enforcement of immigration laws. He also believed that it resulted in generous donations to his campaign.”
Everything Arpaio does, he does for political reasons and/or for his own aggrandizement. Ava, his wife of 58 years, has had cancer for some time now. My sources tell me Arpaio has confided to some that he would like to retire to spend more time with her, but that he can’t because being in office provides a power base from which to battle Snow and, possibly, a future federal prosecution.
Aligning himself with Trump gives Arpaio tremendous political leverage. If Snow refers Arpaio’s case to the local U.S. Attorney’s Office, it seems highly unlikely that anything will happen before the November election. And should Trump win, the billionaire will be able to appoint a federal prosecutor who’s to his liking to replace U.S. Attorney for Arizona John Leonardo, an Obama appointee.
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The federal law governing criminal contempt states that if the government won’t prosecute, a special prosecutor must be appointed to pursue the case. By that time, Arpaio’s betting, he’ll have a friend in the White House who’ll trump all efforts to do him in. Heck, a President Trump could even elevate Arpaio to a Cabinet-level position.
What does Trump gain from a little ol’ sheriff from Maricopa County? For the Republican nominee, Arpaio represents a mark of legitimacy, an illegal-immigrant hunter who reinforces the presidential candidate’s dystopian vision of America.
Perhaps more troubling, Arpaio also serves as a symbol of what Trump wants to do to the nation: turn it backward, to a time when white authority figures were unchecked by pesky groups like the ACLU, or by federal judges bent on enforcing that overrated concept known as justice.