The Feds Proved Themselves a Cage of Cowardly Lions in the Arpaio Investigation

At the conclusion of her four-page letter to Maricopa County Attorney Bill Montgomery, explaining the Arizona U.S. Attorney's Office's rationale for dropping its criminal investigation into Sheriff Joe Arpaio's and ex-County Attorney Andrew Thomas' offices, Ann Birmingham Scheel offered an incredibly lame summation of four years of inaction and incompetence by federal authorities.

"[If] there is one lesson to be drawn from the arrests, investigations, and lawsuits of the past few years," the assistant U.S. attorney wrote, "it is that prosecutors, in seeking justice, must exercise their charging discretion with great care."

Lovely sentiment, Ann. And we're glad to see that your office is tiptoeing through the legal niceties — leaving Arpaio, if he sees fit, to sink his fangs into more innocent victims.

But I, and others, are drawing another conclusion from your cowardly letter, and the craven way your office announced that it was washing its hands of its long probe into Arpaio and Thomas' blatant and unconstitutional abuses of power.

That is, the U.S. Attorney's Office, the FBI, and the Justice Department are worthless at holding accountable law enforcement agencies run amok. They cannot be trusted to protect us when local tyrants — no better than mobsters — operate illegally under the color of law to harass, intimidate, falsely charge, arrest, and imprison anybody from undocumented corn vendors to judges to county supervisors to reporters and newspaper editors.

Ironically, when it comes to the really small fry, the big, bad feds will throw the book at 'em — and then some.

For example, local white-collar perp and former state Representative Richard Miranda recently pleaded guilty in federal court to wire fraud. Miranda was sentenced to 27 months in the federal pen for ripping off hundreds of thousands of dollars from two nonprofits he headed.

Sure, that's bad, but what if you're Sheriff Joe, and you grab $100 million in protected taxpayer funds for jail enhancement, using the money illegally to finance pet projects, such as anti-immigrant sweeps and vindictive investigations of your political enemies?

Well, then, the feds don't even bother to wag a finger at you.

"[T]he funds were simply shifted from one law enforcement purpose to another," Scheel shrugs of the $100 million in her letter to Montgomery.

Scheel goes on to claim there was "insufficient evidence of criminal intent" and "no evidence of false statements from . . . Arpaio or [his] former chief deputy David Hendershott."

What a colossal load. You'll recall that Arpaio falsely told the press that the swiped $100 million was because of a "computer-type glitch."

But Arpaio's former chief financial officer Loretta Barkell countered that claim, telling Channel 12 that she had informed both Hendershott and Arpaio "every single year for the past 10 years" that the MCSO was violating the law by siphoning cash from the jail-enhancement fund.

According to Barkell, Arpaio "waved his hand and said he was not allowing the bean counters to manage his operations."

The feds are aware of what Barkell has to say because she testified before a federal grand jury looking into Arpaio in 2010. Moreover, her testimony can be backed up with records galore from the county, as well as from the testimony of other county officials.

Keep in mind that several assistant U.S. attorneys were cross-deputized as "special deputy county attorneys" by the county Board of Supervisors in 2010. By Scheel's own admission, the U.S. Attorney's Office had "broad" investigatory powers to look into federal and state allegations.

Nonetheless, Arpaio, Hendershott, and their willing minions skate.

Meanwhile, state Representative Ben Arredondo was indicted this year on bribery and other charges, allegedly for taking $6,000 in sports-event tickets as a bribe from a fake FBI front company.

Arredondo pleaded not guilty to the charges stemming from a three-year undercover investigation while the Republican turned Democrat was still a Tempe city councilman.

As with Miranda, I'm not saying such charges are not serious. But they are dwarfed by the mountainous misdeeds of Thomas, Arpaio, Hendershott, and their fellow co-conspirators.

Scheel's excuse seems to be that it's just so hard to make the case against the really bad criminals. You know, the ones who use their authority as cops and prosecutors to gin up charges against critics and foes, to investigate them as a form of harassment, and to arrest and imprison them in an effort to destroy them.

Such activities are violations of federal statute 18 USC Section 242, which makes it a crime for law enforcement officials to deprive someone of his or her constitutional rights "under the color of law."

And if two or more people are involved such wrongdoing, they can be charged under federal code 18 USC Section 241, which makes it illegal to conspire to abridge someone's rights under the constitution.

A comprehensive list of those who have been the targets of criminal acts pursuant to 18 USC Section 241 and 242 by Thomas' County Attorney's Office or Arpaio's Sheriff's Office perhaps could fill this column.

A few of the most well-known victims of Thomas and Arpaio's threats, intimidation, and frame-ups include county supervisors Don Stapley and Mary Rose Wilcox, county workers Sandi Wilson and Susan Schuerman, ex-Superior Court judges Barbara Mundell and Anna Baca, former Phoenix Mayor Phil Gordon, civil rights activist Sal Reza, former state Attorney General Terry Goddard, and Village Voice Media Executive Editor Michael Lacey and CEO Jim Larkin.

And yet, none of these men and women rate a mention by Scheel in her letter. The only victim she deigns to discuss is former Superior Court Judge Gary Donahoe, whom Thomas, his accomplice ex-Deputy County Attorney Lisa Aubuchon, Hendershott, and Arpaio conspired to falsely charge with bribery. This, because they anticipated Donahoe would rule against them in a hearing in his court.

Why did Scheel feel the need to rationalize federal inaction on Donahoe, while ignoring all the rest?

Because Arizona Supreme Court Presiding Disciplinary Judge William O'Neil — writing earlier this year on behalf of the panel that disbarred Thomas and Aubuchon and suspended Thomas' pawn, former Deputy County Attorney Rachel Alexander — concluded that Thomas and Aubuchon had committed perjury by bringing a false criminal complaint against Donahoe.

Moreover, O'Neil found that Aubuchon and Thomas, in conspiring to deprive Donahoe of his rights, were guilty of 18 USC Section 241.

"Were this a criminal case, we are confident that the evidence would establish this conspiracy beyond a reasonable doubt," O'Neil wrote.

Also, O'Neil made it abundantly clear that Hendershott and Arpaio were part of this conspiracy. O'Neil noted that Hendershott told others it was Arpaio's idea to charge Donahoe.

And yet Scheel states in her missive that the U.S. Attorney's Office "cannot bear the heavy burden of proof necessary to obtain a criminal conviction" of this passel of rogue prosecutors and cops.

Thing is, if Scheel really believes this, why will neither she nor anyone else at the federal office appear before the press and the public to answer questions about its decisions?

Remember, Scheel dropped her bomb with a three-paragraph press release just before the Labor Day weekend began, and even the office flack has been forbidden to answer press inquiries about the decision.

Scheel's letter to Montgomery only surfaced after the fact; it was not part of the Friday release, which broadly stated that the U.S. Attorney's Office was "closing its investigation into allegations of criminal conduct by current and former members of the Maricopa County Sheriff's Office and the Maricopa County Attorney's Office."

The simple answer to the question posed above is that the feds' move to end this four-year probe, which began under the George W. Bush administration, is indefensible.

Recently appointed U.S. Attorney John Leonardo recused himself from the Arpaio probe last month, which probably is why Scheel, who had been acting U.S. Attorney until her new boss was sworn in, became the bearer of bad news.

Why did Leonardo recuse himself?

In 2010, when Leonardo still was a Pima County judge, he ruled on bogus charges brought against Supervisor Wilcox, finding that County Attorney Thomas had formed an "alliance with the Maricopa County Sheriff who misused the power of his office to target members of the [Board of Supervisors] for criminal investigation."

Which, obviously, sounds like a violation of 18 USC Section 241.

Former New Mexico U.S. Attorney David Iglesias, when presented with similar abuse-of-power allegations against Sheriff Arpaio in 2009 by Channel 5's Morgan Loew, said, "I would go to a grand jury."

The Republican continued, "I would work very closely with the civil rights criminal division in Washington, D.C. And, based on the information that I have, I would seek an indictment."

Chad Snow, co-founder of Citizens for a Better Arizona, the group responsible for recalling ex-state Senate President Russell Pearce and which now is targeting Arpaio in the November election, noted that numerous other current and former law enforcement officials publicly have accused Arpaio and Thomas of wrongdoing.

"Every other finder of fact or law enforcement professional who has looked at Arpaio's actions has concluded that there is ample evidence of criminality," he explained on the eve of a CBA demonstration in front of the U.S. Attorney's Office in Phoenix over the federal inaction. "What did all of those people see that Ann Birmingham Scheel didn't?"

Indeed, Scheel's announcement sends a dangerous message to all prosecutors and law enforcement: Trample the Constitution at will, and there will be no criminal consequences for your actions.

"If I did something wrong, there would be indictments floating all over the place," Arpaio stated at a press conference after the announcement, where he thanked the feds for ending the investigation. "The bottom line is that we were cleared."

Not cleared. Not innocent. Just un-indicted.

Worse even than the feds showing themselves to be gutless is the colossal present they've given Arpaio two months before the election.

Did I honestly expect them to perp-walk Arpaio, Thomas, Hendershott and all of the rest of these KGB-wanna-bes?

I had fun fantasizing about that, but no. I'm far too cynical to think that law enforcement will go after law enforcement as it should, when necessary.

But the least the Obama administration could have done is wait until after the election to throw Arpaio this big, wet kiss. After all, the feds sat on their hands for four years! Would it have killed them to wait two more months, to have given Democrat Paul Penzone a better shot at ousting this tyrant?

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons