IN CONTEMPT: Trump and Sheriff Joe Subvert the Rule of Law

UPDATE: Trump did it; he pardoned Joe Arpaio. Here’s what it’s all about:

There is no greater crime, as a civic matter, than contempt of court. That crime reflects an abject disdain for the rule of law. Former Maricopa County Sheriff Joe Arpaio has been found guilty of criminal contempt and awaits sentencing. In the meantime, Donald Trump has all but expressly promised to pardon Arpaio. If contempt manifests disdain for the rule of law, then what does it say about Trump that he pardoned it?

If you’d prefer a narrated video presentation, here’s the skinny (excuse the outdoor noises — I recorded outside on a stormy Tampa afternoon):

The Facts

Until 2009, Arpaio had the authority to use his local law-enforcement resources to enforce federal (national) immigration laws. Arpaio’s office, like many local law-enforcement offices around the country, had essentially been deputized by federal authorities to help enforce federal immigration laws.ICE.XCheckII.icecopnightlife

But in 2009, the US Immigration and Customs Enforcement Agency (commonly known as ICE) yanked that authority, citing a long catalog of abuses by Arpaio and his underlings. In 2011, then-Secretary of Homeland Security Janet Napolitano refused to reinstate that authority, making the ICE decision permanent.

What that means is that, after 2009, Arpaio no longer had the authority to detain someone if the only crime that person was suspected of committing was being present in the US illegally — in violation of federal immigration laws. If you don’t have the authority to enforce federal immigration laws, then you also don’t have the authority to detain somebody just for violating federal immigration laws.

Nonetheless, Arpaio (because he is a bigot, xenophobe, and craven political opportunist) loudly and flagrantly continued rounding up people whom he or his officers only suspected of being in the United States in violation of federal immigration laws — the ones he no longer had the authority to enforce.

In 2011, a United States district judge ordered Arpaio to stop; the judge ruled that Arpaio could only detain people reasonably suspected of violating Arizona’s laws or federal laws unrelated to immigration. Here’s a part of that order:

IT IS THEREFORE ORDERED:

[The Maricopa County Sheriff’s Office is] hereby enjoined from detaining any person based only on . . . reasonable belief, without more, that the person is unlawfully present within the United States, because as a matter of law such knowledge does not amount to a reasonable belief that the person [has] violated [any law other than federal immigration law].

And still, for years, Arpaio persisted.

Finally, in 2016, Arpaio was accused of being in contempt of court for violating the 2011 order and several other federal-court orders imposed after 2011.

The case was tried this year, and last month a judge said this:

Screenshot (71)

The elements of contempt are as follows:

  1. the defendant knew of a court order;
  2. the defendant disobeyed the court order; and
  3. the defendant disobeyed the court order willfully – meaning  (in this context) that the defendant knew or should have known that his conduct was wrongful.

Knowledge

Did Arpaio know about the order or orders? Of course he did. Arpaio’s lawyers told him that he was enjoined (barred) from detaining people based only on the belief that they were in the United States in violation of federal immigration law. Lawyers explained to Arpaio that he and his officers were only allowed to detain people for suspected violations of Arizona’s state laws or federal laws unrelated to immigration. And those lawyers testified that Arpaio understood what they had told him.

Disobedience

Not only did Arpaio disobey the order; as the judge who held him in contempt said, he “announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.”

Willfulness

Arpaio had a novel excuse on this score: he said that he delegated the responsibility of assuring compliance with court orders to his lawyers and deputies, and that he therefore could not have willfully violated any order.

The judge in the contempt case said otherwise: the 2011 order and later orders were directed to the Sheriff (Arpaio himself) and it was his responsibility to carry them out; he couldn’t willfully avoid that responsibility while knowing that the orders were being flagrantly violated by his own subordinates.

Conclusion

Arpaio didn’t care that his authority to detain people he suspected of being in the US illegally had been lawfully revoked by ICE. He didn’t care that the revocation was lawfully extended by the Secretary of Homeland Security two years later. He didn’t care that a judge in 2011 lawfully ordered him to conform his behavior to the lawful decisions that had been made by federal authorities. Along the way, he also didn’t care that higher courts lawfully upheld the lawful order a trial judge issued in 2011.

What an irony that Joe Arpaio has concerned himself so much with the lawlessness of others; his disdain — yes, his contempt — for lawfulness is the stuff of legend.

Arpaio is in contempt not just of a court order, but of the rule of law itself. Since Trump pardoned him, Trump is too.

-bb