Sheriff Joe Arpaio's latest campaign commercial offers the best evidence yet that his re-election effort may be foundering like that doomed fishing vessel in The Perfect Storm.
Recent polls have shown Arpaio trailing his Democratic challenger Paul Penzone, sometimes by difficult-to-believe margins — as much as 15 points according to an Arizona Republic/Morrison Institute poll released last week. While there is reason to doubt Penzone's lead is that wide, Arpaio's angry, defensive new TV ad is practically an admission from the Arpaio camp that the sheriff is in trouble.
Bigly, as one of Arpaio's political pals might say.
In the 30-second spot, which has been on the air since late last week, a ticked-off Arpaio lashes out at President Barack Obama and the U.S. Department of Justice, blaming them for the sheriff's current legal woes.
"They've been after me from day one," Arpaio says of the Obama administration. "Now they're filing contempt-of-court charges, against me, the day early voting started. This is all politics. Hillary gets a free pass, but they're comin' after me? What a bunch of garbage."
To be precise, the DOJ announced its intention to prosecute Arpaio during an October 11 status conference before federal Judge Susan R. Bolton. Early voting in Arizona's general election began the next day, October 12.
A month earlier, the DOJ had requested a hearing to discuss the case, and Arpaio's criminal attorney Mel McDonald filed a notice of "no objection" to the request. Judge Bolton then set the date of the status conference for October 11. McDonald made no objection on the record to the scheduling.
On Tuesday, Judge Bolton issued an order, per a previous request from DOJ lawyers, setting December 6 for Arpaio's trial on one misdemeanor criminal contempt count. Bolton's order describes how the charge dates from federal Judge G. Murray Snow's December 2011 preliminary injunction in the ACLU's civil-rights lawsuit, Melendres v. Arpaio.
At that time, Snow enjoined the MCSO from enforcing federal civil immigration law, and from holding those suspected of being in the country illegally without charging them with a state crime. The injunction was upheld on appeal and made permanent in 2013, when, following a trial in the case, Snow ruled that Arpaio and the MCSO were guilty of racially profiling Latinos. That ruling also was upheld on appeal.
But as was revealed at length in testimony and evidence in Snow's courtroom during Arpaio's 2015 civil contempt trial, Arpaio and his underlings had deliberately refused to enforce the injunction for 17 months.
As Bolton writes in her recent order:
"Sheriff Arpaio admitted he knew about the preliminary injunction upon its issuance and thereafter. Sheriff Arpaio's attorney stated to the press that the Sheriff disagreed with the Order and would appeal it, but would also comply with it in the meantime. Sheriff Arpaio's attorney and members of his command staff repeatedly advised him on what was necessary to comply with the Order."
Yet, Bolton writes, Arpaio, his chief deputy Jerry Sheridan, and others under his command persisted in defying Snow, continuing to detain persons based on factors including their race, often illegally arresting them despite a lack of state charges and turning them over to federal authorities. Arpaio did this, Bolton notes, "based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity."
Which is one reason Snow, a conservative Mormon appointed to the bench by then-President George W. Bush, referred the matter for criminal prosecution in August. The U.S. Attorney's Office for Arizona declared a conflict in the case, so lawyers for the DOJ are prosecuting it.
Clearly, Arpaio's situation is of his own making, not the DOJ's.
Nevertheless, according to veteran Republican political consultant Nathan Sproul of Tempe-based Lincoln Strategy Group, the Arpaio ad's angry spin — disingenuous as it may be — is aimed at shoring up the sheriff's faltering political base.
"I think what that [ad] shows is that his internal polling is telling his campaign that he is losing core Republicans," says Sproul. "Because that's not a message to Democrats, that's not a message to independents, that's a message to hardcore, primary-voting Republicans."
Sproul believes the ad is a dog whistle to Republicans who are dissatisfied with Arpaio's 20-plus-year reign as sheriff, his contempt for the court, and the $50 million the case has cost taxpayers so far. (That's not to mention Arpaio's countless scandals, his fiscal improprieties, and his abuse of power.) Arpaio's political team has crafted a TV ad that it hopes will bring these Republicans who have supported him in the past back to the fold.
"A Democrat [may] think he's calling attention to being criminally charged," Sproul says. "A conservative Republican looks at that ad and says no, what's being called attention to is that there is a double standard: The Obama Justice Department, which conservatives believe is corrupt, failed to indict and prosecute Hillary Clinton, but yet they'll go after Joe Arpaio, and in fact they'll even bring the charges against him on the day that early ballots go out, purely as a political ploy. "
That may not be true, but it might appeal to mainstream GOP-ers wavering in their support for the sheriff, argues Sproul. And because of the significant registration advantage that Republicans maintain over Democrats in this county, in order to win Penzone will need to attract the votes of Republicans and independents who lean Republican.
An ex-sergeant with the Phoenix Police Department, Penzone has been doing just that. Sproul, for instance, opposes Arpaio. And in July he released a poll that showed Penzone and Arpaio neck-and-neck, with Penzone about three points ahead. When undecided voters were pressed to make a decision, they broke for Penzone, stretching his lead to 4.6 percent.
Since then, a number of polls have found Penzone much further ahead, anywhere from 9 points to the Republic/Morrison Institute's 15-point lead. The problem with the latter is that it under-samples independents, over-samples Democrats, and relies on the Behavior Research Center (BRC), a polling company that historically skews Democratic, to gather data.
Granted, the responses in the Republic/Morrison Institute poll were weighted, but a 15-point spread is tougher to swallow than week-old Thanksgiving turkey. Not to knock BRC too hard, but in mid-October of 2012, BRC's Rocky Mountain Poll had Obama up two points over Republican rival Mitt Romney in Arizona. A few weeks later, Romney bested Obama in this state by 10 points.
Arpaio's ad could have legal consequences, says Chandler attorney Tom Ryan, who is representing Penzone's ex-wife regarding attack ads Arpaio's campaign ran that wrongly painted Penzone as a wife-beater.
Ryan points out that the DOJ is still investigating Arpaio for possible obstruction of justice, and, as the Miranda warning goes, what a suspect says can and will be used against him in a court of law.
"If I were Arpaio's attorney, I'd be going through the roof about this ad," Ryan tells New Times. "Because it's helping the prosecutors make their case that Arpaio knew exactly what he was doing when he put his thumb in the eye of Judge Murray Snow."
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The charge that Obama's blue meanies are out for Joe's hide? Poppycock, says Ryan.
"The idea that a sitting U.S. president is going to come down and specifically direct a prosecution of a local county sheriff is ridiculous," Ryan maintains. "I know he would like to think that, but that's just the machinations of an egomaniac."
Read Judge Susan R. Bolton's October 25 order in Arpaio's criminal contempt case: