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Trump Throws Law Under the Bus With Joe Arpaio Pardon

Donald Trump, our law and order president, pardoned sheriff Joe Arpaio and in doing so endorsed treating brown people different than white people.

President Donald J. Trump has issued a pardon to former Maricopa County, Arizona Sheriff Joe Arpaio wiping out Arpaio’s conviction for criminal contempt of a federal court. The contemptuous act was arresting people for driving while brown after being ordered to cease and desist.

While use of the pardon power this early in his term is unusual, it is perfectly legal. Trump claims to be a law and order president and some people think that use of the pardon power disregards the law. It does not. The import of this pardon or any pardon for law enforcement in general depends on the particular facts of the case, Sheriff Joe in a legal context.

Since Sheriff Joe’s crime involves individual rights, it makes sense to start the legal context with the earliest instance of individual rights in English law, the Magna Carta. King Henry II ordered his law enforcers—the sheriffs of every shire—in 1217 to inform individuals that King John had “conceded” they have rights back in 1215. Henry’s order to the sheriffs to enforce John’s concession was calculated to attract support of the barons as the civil war was ending. That is the political context for this writ:


The king [sends] greeting[s] to the sheriff of Worcestershire. We order you on the day and place of your county court to cause the charters of liberties to be read. We have conceded these charters to the barons and all other men of our realm through the common council of our kingdom and our lord legate has confirmed them through his seal. And [we order] that you cause the liberties included in the charter itself to be firmly observed by all our faithful men in your bailiwicks. Because to you not yet, etc. With the count as witness at Chertsey, on the 23rd day of June in the first year of our reign.

All the English common law writs began Rex vicecomiti salutem. The king greets the sheriff and makes an order or orders. The reason the writ exists is to authorize the sheriff to act, so the sheriff—if challenged—could answer the question, “Quo warranto?” This demand to state the source of an officer’s authority became a standalone writ to test the bona fides of any public officer, but in this context the point is that the sheriff has no authority he does not derive from a judge.

In the beginning of the common law, there was only one judge: the king. As commerce grew and disputes arose in matters more complicated and numerous than which vassal was seized of the fief known as Blackacre, the king farmed out judging to make time for, well, life.

Judges represented the king, derived their power from the king, and the final appeal of any judgment was to the king. So it was that a writ went out over a judge's signature and began Rex vicecomiti salutem. The sheriff derived his power from the writ he was serving, which was a delegation of power from the king to the judge to the sheriff to do the specific things set out in the writ.

In Anglo-American tradition, the sheriff is an armed man with no will of his own. He may act to foil a crime about to happen in his presence, enforcing the will of the legislature that created the crime.

A writ of habeas corpus commands the sheriff to bring the petitioner to court and show authority to be holding him. Habeas corpus enforces the will of the judge.

The only instance when a sheriff can act without an order is when he witnesses a crime, and even then he's required to take the person arrested directly to a judge. The whole modern process of “booking,” beginning with fingerprinting and continuing to a photograph and, in some jurisdictions, the taking of a DNA sample by cheek swab, is based on the fiction that no judge is immediately available and so the arrested person must be detained in the jail until a judge becomes available.

With or without a warrant, an arrest is not a taking to jail. It’s a taking to a judge, and the fiction of the unavailable judge evolved to allow the police to grow a crime fighting database of pictures, fingerprints, and DNA.

In poor communities like the one where I grew up, you still hear the police referred to as “the law.” While nothing could be farther from the truth, people who can’t afford a lawyer are stuck with whatever a man with a badge does, so calling that person “the law” is a statement of lived reality.

Sheriff Joe Arpaio, a state officer, took it upon himself to enforce a federal law. Immigration law is like Indian law in that it’s always federal. A state officer cannot enforce it without both permission of the state and agreement of the federal authorities. In the case of immigration status, the law is immensely complicated. A state court judge—let alone a state law enforcement officer—is in no position to know whether a particular individual is in the U.S. legally.

Predictably, Arpaio’s department hoovered up brown people, who might have been citizens of Mexico or any country to the south of Mexico. They might also be American Indians, citizens by birth of nations that existed in North America before the U.S. or Mexico gained independent political status.

In a lawsuit on behalf of brown people offended by being arrested for driving while brown, the federal court not only did not ratify Sheriff Joe’s round up of brown people, it ordered him to cease and desist.

He violated the court's order. While that had to be proven beyond a reasonable doubt to hold him in criminal contempt, Sheriff Joe has never denied continuing the roundup of brown people. While this case was going on, the voters of Maricopa County—many of whom are brown—took away the power he was abusing by voting him out of office.

There is no duty of a sheriff that is more "core" than enforcement of court orders. It's what the office arose to do. Modern writs no longer begin Rex vicecomiti salutem, but there is some equivalent language followed by specific instructions how the sheriff is to exercise authority. IT IS NOT HIS AUTHORITY. He has none.

Reflecting that in our times there are many agencies with police powers, an Arizona warrant begins, “To all peace officers of the State of Arizona,” gives the reason for arrest, and orders the person named to be brought to the judge.

Joe Arpaio has flouted the traditional and modern functions of a sheriff. Those functions are to carry out the will of judges and sometimes of legislatures—not his own will.

Pardoning Arpaio at this point in the process sends the lawless message that his conduct was correct. Keeping him out of jail could not be the motive, because he had not been sentenced and most observers doubted that the judge would put Arpaio in jail after he was put out to pasture by the voters at age 85. This was not about keeping an old man out of jail because he was never in jail.


The power to pardon contains the power to commute a sentence. George W. Bush caught hell from the left for commuting Scooter Libby’s jail sentence for leaking the identity of a CIA agent. He caught hell from the right because he did not pardon Libby.

Bush split it down the middle because he did not want Libby to go to jail but he did not want to endorse Libby’s conduct. The same path was available to Trump if he wished to keep an old man out of jail while maintaining the principle that rounding up brown people and forcing them to produce immigration papers is neither lawful nor morally correct conduct.

This is not about protecting an 85-year-old from jail. Trump indicated at his speech in Phoenix that he thought Arpaio had done the right thing. Commenting on his pardon, Arpaio himself told reporters his conduct had been vindicated.

The law and order president has endorsed treating brown people differently than white people. The policy endorsed is not the law and it subjects Hispanics and Indians to an order completely different than the one white people inhabit. Joe Arpaio is not “the law,” even if Donald Trump endorses his conduct.