On Arpaio pardon, facts don’t matter to either side

The conviction of former Maricopa County Sheriff Joe Arpaio for criminal contempt is being serially misrepresented. The misrepresentations are material to the question of whether President Donald Trump should have pardoned Arpaio. Arpaio’s criminal conviction is routinely, in fact almost invariably, described in one of two ways. Either that he continued to engage in racial profiling despite a court order to stop. Or that he continued with immigration sweeps contrary to a court order to abandon them.

Both descriptions are inaccurate and misleading.

In the underlying civil case, federal Judge G. Murray Snow did find that Arpaio had unconstitutionally used race in making traffic stops in an effort to find illegal immigrants. In fact, it was the central finding in the civil case.

Snow’s remedial orders, however, went far beyond simply forbidding the use of race in initial traffic stops. He ordered Arpaio to get out of the immigration enforcement business altogether. Even with a legal stop, Arpaio was to either charge people with a state crime or let them go. No detaining them or turning them over to federal officials for immigration violations.

It was this edict to get out of the immigration business altogether that federal Judge Susan Bolton found Arpaio in criminal contempt for violating.

That Arpaio willfully and knowingly violated this part of the order is hard to contest.

Arpaio repeatedly said publicly he was still going to enforce federal immigration laws. He turned in over 170 people to federal immigration officials without charging them with state crimes. He told a subordinate that if Immigration and Customs Enforcement wouldn’t take illegal immigrants that the sheriff’s office encountered, to take them to the Border Patrol.

However, Bolton’s decision does not include a finding that the sheriff’s office continued to illegally use race in initial stops, or any other legal problem with the initial stops. It was what the sheriff’s office did after the stop — turn people over to the feds for immigration violations without charging them with state crimes — that Bolton found in criminal contempt of Snow’s civil orders.

This distinction undermines one of the principal arguments made against a pardon.

According to the more excitable opponents, pardoning Arpaio would be an endorsement by Trump of racism. This See ROBB, Page 7E