How Donald Trump Could Shield Sheriff Joe Arpaio From Criminal Charges

By Jude Joffe-Block
Published: Wednesday, November 16, 2016 - 10:04am
Updated: Wednesday, November 16, 2016 - 2:03pm
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Maricopa County Sheriff's Office
Former Maricopa County Sheriff Joe Arpaio.

Maricopa County decisively voted against Sheriff Joe Arpaio serving a seventh term in last week’s election. Yet tens of thousands of those same voters helped elect Arpaio’s ally Donald Trump president.

A Trump White House could have a profound impact on the embattled sheriff’s legacy.

As president, Trump could push a national crackdown on illegal immigration using tactics that echo what Arpaio attempted locally. Arpaio’s name has appeared in recent days on lists of who could wind up in Trump’s cabinet, though some analysts believe an honorary advisor role is more likely, given that Arpaio is 84.

Trump’s presidential powers could also be used to potentially shield Arpaio from the federal criminal charges he is facing.

The U.S. Department of Justice is prosecuting Arpaio for criminal contempt of court, after a federal judge found Arpaio kept making immigration arrests for a year and a half after the judge ordered those arrests to stop. Federal prosecutors are also investigating Arpaio and three others for obstruction of justice.

Arpaio has accused the Obama administration of going after him for political reasons, and has said he is innocent of criminal contempt. He acknowledged he violated court orders but has said it was not intentional. Justice Department lawyers said they prosecuted Arpaio the day before early voting began, and Arpaio criticized that as an effort to influence the election.

Arpaio could face up to six months in prison if he is convicted of contempt of court.

Many immigrants impacted by Arpaio’s policies said the only way there will be justice is if Arpaio is forced to go through what they and their families endured in his jail.

But President Trump or his Attorney General could choose to drop the case.

“The Justice Department, the Attorney General, or the president could order charges to be dropped,” said Erik Luna, a law professor at Arizona State University’s Sandra Day O’Connor College of Law. “The president has that constitutional authority.”

Still, Luna said it would be unusual to see a president use that power in a case like the one against Arpaio, which is brought by the DOJ’s Public Integrity Section. That unit was formed in the wake of the Watergate scandal to root out political corruption and Luna said it is supposed to operate with a degree of independence.

“It doesn’t mean it won’t happen, it doesn’t mean the president doesn’t have the power to do so, and indeed a President-elect Trump when he is inaugurated he may well decide charges should be dropped against Sheriff Joe Arpaio,” Luna said. “But it would be something that we haven’t seen at least during the tenure of this idea of the Public Integrity Section.”

At the same time, Luna said in recent years the Public Integrity Section’s reputation has been tarnished by the revelation that its prosecutors failed to turn over evidence to the defense while prosecuting Alaska Republican Senator Ted Stevens.

But even if the Department of Justice did drop the criminal contempt case against Arpaio, it is likely the case would still go forward because of a unique provision in the federal rules regarding criminal contempt cases.

The rule says if the government declines to prosecute, the federal judge presiding over the case “must appoint another attorney to prosecute the contempt.”

For that reason, former U.S. Attorney for Arizona Paul Charlton said Trump could choose a different way to intervene.

“The easier option, and perhaps the more disconcerting option, is that President Trump could pardon Joe Arpaio,” said Charlton, who is a long-time critic of Arpaio.

If Arpaio’s December trial date is pushed back until after Trump takes office, Charlton said Trump could pardon Arpaio before his trial of any pending charge or possible future charges.

“And then neither the district court nor the line prosecutors at the Department of Justice would have anything to say about a future prosecution against Joe Arpaio,” Charlton said.

There is a famous precedent for this kind of presidential pardon.

“You’ll remember that President Ford granted Richard Nixon a pardon and no charges were extant at that point in time,” Charlton said.

Arpaio’s trial is set for Dec. 6, though his attorney has asked for it to be pushed back. Federal prosecutors said they do not oppose moving the trial date back 90 to 120 days, which would push it into the start of the Trump administration. The judge still has not set a new trial date.

Arpaio’s criminal defense lawyer Mel McDonald said he recognizes the change in administrations could have implications for his client’s case, either through a presidential pardon or a new Attorney General dropping charges.

“The fact that he is not continuing as sheriff, there is a lot of common sense reasons why the Attorney General or the President-Elect may decide this is a waste of time,” McDonald said. “There is a myriad of possibilities, not the least of which is our genuine belief that he is not guilty of the offense and it is going to take months in trial to prove it and enormous expense, and what possible good can be accomplished.”

The possibility of a President Trump pardoning Arpaio doesn’t sit well with Lydia Guzman, who helped bring the racial profiling suit against Arpaio on behalf of Latino drivers.

“It would mean that the president is taking care of his friends and picking on his enemies,” Guzman said.

Guzman said Arpaio needs to be held accountable for disobeying a judge and harming the Latino immigrant community, and Trump should not intervene.

But given Arpaio’s national fan base, it is possible it would be politically popular among Trump’s base to pardon Arpaio.

Arpaio was an early supporter of Trump, and introduced the president-elect at all of his Arizona campaign appearances.

At Trump’s first campaign event in Phoenix in July 2015, Arpaio noted their shared birthday, shared skepticism over President Barack Obama’s birth certificate and shared interest in going after illegal immigration.

Arpaio stumped for Trump in various parts of the country, including a coveted spot on the Republican National Committee stage. In that speech, Arpaio focused on the need to secure the border and how Trump had personally called his wife, who is battling cancer.

But the two Republican friends had very different nights on Nov. 8.

Ballots are still being counted, but according to the latest tallies, Maricopa County voters favored Trump by a margin of about 46,500 votes. While county voters picked Arpaio’s Democratic opponent Paul Penzone by a margin of almost 187,500 votes.

Penzone received about 71,000 more votes than Hillary Clinton, Jill Stein and Gary Johnson combined, suggesting that at least about that many Trump supporters also voted for him.

Political analyst Chris Herstam said those voters were likely fiscal conservatives fed up by Arpaio’s legal costs.

The ongoing racial profiling case against Arpaio, and the civil contempt of court case that stemmed from it, have already cost taxpayers close to $50 million.

Herstam said together Latinos, Democrats and Republican fiscal conservatives helped Penzone win by 12.6 percent.

“That coalition did Sheriff Joe in,” Herstam said. “And the Republicans basically came home and still supported Donald Trump in Maricopa County.”

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