The Joe Arpaio pardon is an affront to anyone concerned about the rule of law. And this includes the lawyers, judges, and adjudicators I know at the Departments of Justice and Homeland Security.
But before we get to that, we need to talk a bit about “Sheriff Joe.” A brief overview of his career as sheriff of Maricopa County, Arizona reveals various misdeeds, including–
abuse of power; misuse of funds; failure to investigate sex crimes; improper clearance of cases; unlawful enforcement of immigration laws; and election law violations. A Federal court monitor was appointed to oversee his office’s operations because of complaints of racial profiling. The U.S. Department of Justice concluded that Arpaio oversaw the worst pattern of racial profiling in U.S. history, and subsequently filed suit against him for unlawful discriminatory police conduct. Arpaio’s office paid more than $146 million in fees, settlements, and court awards.
But all that is not what ultimately led to where we are now. Mr. Arpaio was a defendant in a civil rights lawsuit. The judge ordered him to stop racial profiling, but Mr. Arpaio refused to comply. In a civil contempt proceeding, Mr. Arpaio admitted as much to the Court: “Defendants acknowledge and appreciate that they have violated the Court’s orders and that there are consequences for these violations.” In this particular case, the “consequences” proposed by Mr. Arpaio were for the tax payers of Maricopa County to foot the bill for a victim compensation fund. That didn’t pan out, and Mr. Arpaio was charged with criminal contempt.
He was convicted on July 31, 2017. The presiding judge wrote that Mr. Arpaio had “willfully violated an order of the court” by failing “to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” Sentencing was scheduled for October.
Then last week, on a Friday night in the midst of a hurricane, President Trump issued a pardon for the criminal contempt and any other charges that might arise out of the same litigation. In an explanatory statement, the White House called Mr. Arpaio a “worthy candidate” who “protect[ed] the public from the scourges of crime and illegal immigration.”
So what does this mean? Of course, it means that Joe Arpaio won’t be going to jail. But on a more fundamental level, what does it mean for the rule of law? And what does it mean for those who enforce the law?
It seems to me that the clear signal sent by this pardon is that violating the law–by racial profiling or other means–is acceptable in order to rid our country of the “scourge” of illegal immigration. The ends justify the means.
Such an approach is antithetical to any society that values law and order, and that opposes tyranny. Those sworn to protect our nation’s laws must hold themselves to the highest standards. It is not for them to decide which laws to follow based on their subjective beliefs about right and wrong. They must follow the law. And when they don’t, they must be held accountable. When regular citizens fail to obey the law, it is anarchy. When law enforcement officers fail to obey the law, it is fascism.
And so the Joe Arpaio pardon is an endorsement of fascism. Whether you think all “illegals” should be rounded up and deported, or whether you think they should all be granted green cards makes no difference to this analysis. Fascism is fascism and law is law.
So what does all this mean for attorneys, judges, adjudicators, and others at DOJ and DHS?
It seems to me that you have a duty to uphold the law, regardless of whether the President is willing to tolerate or even encourage you to violate it in the service of his goals. That’s pretty basic, and we’ve seen examples of government officials following the law even when the President discouraged it (see Jeff Sessions and recusal).
But I think there is something more you can do. You can err on the side of non-citizens. Especially these days, the deck is stacked against aliens seeking immigration benefits. Simple mistakes on forms can lead to severe consequences. Minor criminal convictions can lead to banishment for life. The over-broad terrorism bar treats victims of terror like terrorists. Prosecutorial discretion is gone. The denial rate for asylum cases is on the rise. We are seeing more and more requests for evidence, and the wait time for many immigration benefits is getting longer. Not to mention the travel ban, increased use of detention, the backlog, etc., etc. In other words, the situation on the immigrant-side of the fence ain’t easy.
But if you are an adjudicator or an attorney or a judge with DHS or DOJ, you have some power to mitigate these difficulties. You have some flexibility in your decision-making. You are in a position to blunt some of the worst excesses of the Trump Administration. You can help act as a counter-balance when the President encourages law enforcement to push the boundaries of the law, as he did with the Joe Arpaio pardon.
Immigration and asylum laws are not nearly as harsh as the Trump Administration would have us believe. But the President is trying to use immigration law and procedure in a way that blocks people from coming here, or that deports those who are here. It is up to the people on the front line of that effort to protect the rule of law. Judges, adjudicators, and attorneys have the legal authority to grant cases, and in the face of the Trump Administration’s attack on the rule of law, they should continue to do so. The lives of many immigrants–and our country’s fealty to the rule of law–depend on it.