Trump says Arpaio was treated unfairly

Joe Arpaio has complained the judge who ordered him to stop racial profiling, acted out of political bias.

Former Maricopa County, Arizonia, sheriff Joe Arpaio has complained for years that G. Murray Snow, the judge who ordered him to stop racial profiling, acted out of political bias. Arpaio even moved in 2015 to force Snow to recuse himself from the class-action lawsuit brought by the American Civil Liberties Union that later led to Arpaio’s conviction of criminal contempt of court. President Donald Trump said after pardoning Arpaio that the former sheriff had been treated “unbelievably unfairly,” too.

I was Snow’s clerk during the original trial, and I feel compelled to set the record straight. Snow is a conservative, and a deeply principled one.

Arpaio had originally been sued in 2007 by a number of interest groups alleging that his “saturation patrols” violated the Fourth Amendment because they involved stopping people for immigration status offenses, which are the exclusive jurisdiction of federal agencies, and the 14th Amendment, because they targeted Hispanics. By September 2011, when I started my clerkship, the case had already outlasted its original judge and its original law firm.

It has been widely reported that Snow was appointed by George W. Bush; that is not the full extent of his conservatism. He had a desk blotter from the Romney Institute. He spoke favorably of Justice Antonin Scalia’s jurisprudence. While we had little opportunity to talk electoral politics, I would guess he was no fan of President Barack Obama.

Snow believed in the rule of law and the fair application of law. During my clerkship year, from September 2011 through September 2012, he heard foreclosure cases, prisoner petitions and many prosecutions of immigrants. A liberal judge could have found loopholes to save a person’s house, spring a prisoner or give an immigrant a second chance, but Snow did not: He followed the law.

He treated Arpaio exceptionally fairly throughout the trial. When the plaintiffs presented strong evidence that Arpaio’s department mainly stopped Hispanics, Snow emphasized that the lawsuit could not prevail unless they also proved that that was Arpaio’s intent. When it was revealed that Arpaio’s office had improperly deleted thousands of emails responsive to document requests, Snow ruled only that he “may” take the fact under consideration at trial. And when Snow discovered a procedural issue that could have merited his recusal, he called a hearing, and both sides asked him to stay on the case.

Snow issued a limited order before trial barring Arpaio’s deputies from stopping people based on a suspicion that they were not legally present in the United States - a federal civil offense for which state officials cannot arrest people. This order was upheld on appeal by three judges, including Nixon appointee Clifford Wallace, who wrote, “We applaud how the district court has expedited this sensitive case.”

During the trial, some of the deleted emails, which had been found on a backup server outside of Arpaio’s control, were presented as evidence. They included racist jokes about a “Mexifornia” driver’s license, a picture of a man passed out drunk under the caption “Mexican yoga,” and a coat hanger bent into a toilet paper holder called “Mexican engineering.”

But Snow ignored these incendiary emails and focused on the evidence relevant to the case - Arpaio and the Maricopa County Sheriff’s Office equated being Hispanic with being unlawfully present in the country. Their written orders directed officers to stop cars when the drivers and passengers appeared Hispanic. Full stop.

After the trial, Snow took seven months to draft a careful, understated 142-page order. There were two key demands: The order to stop enforcing civil violations of federal immigration law remained, and Arpaio also had to stop detaining people based on their race.

Arpaio not only flouted the order but boasted on camera that he would not follow it. (He would eventually be convicted of criminal contempt for ignoring Snow’s narrower preliminary order.) He sent deputies to stalk Snow’s wife. He made gratuitous, public insults.

Snow has not responded to Arpaio; given what I know of him, I doubt he ever will. But I thought it was important that those following this saga know something of the judge involved; he is a man of greater dignity and decency than any I have ever met.