Pardon for Arpaio would be completely appropriate
Having attended Sheriff Joe Arpaio’s criminal contempt as lead trial counsel, it is now difficult to restrain myself from commenting on the inaccurate statements about the sheriff’s case and our president’s consideration of a pardon. All I hear and read is that this purposefully invokes racism at every turn. Wrong.
Sheriff Joe’s contempt trial had nothing to do with race. He is not a racist, or a fascist either. He is a lawman. In fact, the United States Department of Justice admitted before trial that it is “unaware of facts” that would support “that Defendant and other MCSO officers detained plaintiffs on the basis of race.”
Sheriff Joe is not a racist. I have seen racists and he is not one of them. But that is not what the trial was all about.
What the sheriff’s trial is actually about was a non-existent crime for not following a preliminary injunction that was unclear to everyone who read it except the federal judges.
The sheriff was enforcing the law as written. There was no racial profiling going on then, and certainly not after the order was clarified in the final order either.
Instead, the sheriff was held out to be penalized for doing the job for which he had been elected: reporting illegal aliens who are lawfully apprehended to the federal authorities. Rather than simply releasing them, his deputies contacted the federal immigration authorities to take their direction, under the requisite “cooperation” provisions of federal law as required.
U.S. Supreme Court Justice Antonin Scalia, in his dissent in Arizona vs. U.S., made clear that stopping the police from doing this (i.e., their job) would be an “assault on logic” because “federal law expressly provides that state officers may cooperate” with federal authorities when “identifying a removable alien and holding him for federal determination whether he should be removed.”
But that is exactly what happened here — an assault on logic.
It was the former president’s administration that created this problem, by stopping local police from enforcing that immigration law the people instituted. The court then furthered this agenda. It is only proper that this president undid that.
From the start, this case has been a battle between the executive and judicial branches over proper immigration enforcement. The judge refused to grant the sheriff a jury to prove his innocence, even though the law clearly entitled him to one. This assured his conviction from the start.
Sheriff Joe was forced to try a criminal contempt-of-court case with his hands tied behind his back. This was like trying a crime to the victim, since the court claimed to be the victim. The result was a trial in which the sheriff had no chance to be proven innocent beyond a reasonable doubt by the people.
Without a jury of his peers, his conviction was a foregone conclusion, despite the facts and the law clearly proving the sheriff’s complete innocence. So, is it unfair for the executive branch to now right this wrong, created by the former administration, despite certain members of the public trying to claim racism as the motive? No.
Justice Oliver Wendell Holmes once said that a pardon is not an act of power; it “is a part of the constitutional scheme.”
When the judge refused to let this case go to a jury, that same scheme refused to let the people speak.
The only constitutional check on this is to let the people speak now, through their duly elected president, to obtain the only certain justice it appears that Sheriff Joe may get.
Dennis Wilenchik is a founding partner at the law firm Wilenchik & Bartness in Phoenix, and along with his son Jack, represents former Sheriff Joe Arpaio in his criminal-contempt trial. Email him at diw@wb-law.com.