Trump and Arpaio are united in their common disdain of judges.

Casual Racism Isn’t All That Unites Trump and Arpaio. They Both Disdain the Rule of Law.

Casual Racism Isn’t All That Unites Trump and Arpaio. They Both Disdain the Rule of Law.

The law, lawyers, and the court.
Aug. 23 2017 2:17 PM

Trump’s Anti-Judge Playbook Originated With Arpaio

Of course the president will pardon him—it’s just another way for him to signal his disdain for the rule of law.

US President Donald Trump speaks at a 'Make America Great Again' rally in Phoenix, Arizona, on August 22, 2017.
President Donald Trump speaks at a “Make America Great Again” rally in Phoenix on Tuesday.

Nicholas Kamm/AFP/Getty Images

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Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

In his predictably unhinged rally in Arizona on Tuesday night, Donald Trump opted to go for the season-ending, ratings-boosting cliffhanger when he declined to pardon former Maricopa County Sheriff Joe Arpaio for his federal criminal contempt of court conviction. Demonstrating his natural nose for high drama, Trump teased a future pardon, promising the roaring crowd that he would take care of former Sheriff Joe. “Was Sheriff Joe convicted for doing his job?” President Trump asked as the crowd cheered. “I’ll make a prediction, I think he’s going to be just fine.” He then added, “I won’t do it tonight because I don’t want to cause any controversy.” (According to a CNN report on Wednesday, the White House has already prepared the paperwork.) But the will-he-won’t-he arc hardly quells the staggering reality that with or without a presidential pardon, Trump has cast Arpaio as an unfortunate victim of judicial overreach. Just like Donald Trump.

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None of this is new or revelatory. The president told Fox News on Aug. 14 that he was “seriously considering” pardoning for Arpaio, describing him as a “great American patriot, and I hate to see what has happened to him.” Much has already been said about Arpaio’s decades-long career of racist, abusive, and sadistic treatment of Latinos in Maricopa County, and there can be no doubt that Trump’s promises of pardoning the well-documented monstrous racism and cruelty is another deliberate piece of signaling about the centrality of bias and racism in Donald Trump’s presidency. Trump and Arpaio were proud co-conspirators in the claim that President Obama was not an American citizen. After Trump began teasing the pardon earlier this month, the American Civil Liberties Union tweeted, “Make no mistake, if Trump pardons Arpaio, this would be an official presidential endorsement of racism.”

There’s more. Arpaio is also a soulmate for this president in his inexcusable failure to investigate hundreds of reported sex crimes and child molestations, which in his view, were less serious offenses than the crime of driving while Mexican. But one other aspect of the Arpaio controversy has shimmied under the radar. Arpaio’s career and conviction stand as yet one more example of his complete disregard of judicial orders and binding court authority. That makes him another Donald Trump. Make no mistake about it: The fact that Arpaio is quite literally convicted of being in criminal contempt of the courts is a big selling point for a president who has evinced nothing but contempt for the judicial branch since before he took office.

Arpaio isn’t just your garden-variety racist. He is a criminal racist who ignores judges for sport. Arpaio was convicted by a federal judge last month for defying a different federal judge’s order that he stop racially profiling Latinos for traffic stops and detention. This contempt goes back a decade. In 2007, a civil class action was filed and a federal investigation and lawsuit followed. In 2011, then-Sheriff Arpaio was enjoined by U.S. District Judge G. Murray Snow from detaining people he deemed illegal immigrants, on suspicion of nothing beyond race. Nevertheless he persisted. Last year, the Justice Department decided to pursue a criminal contempt-of-court case against him, alleging that he and his deputies continued their racial-profiling practices for almost two years after being ordered to desist. And all the while, Arpaio was fundraising and boasting that no judge could constrain him.

In July, following a bench trial, U.S. District Judge Susan R. Bolton finally held him in criminal contempt for refusing to abide by the earlier ruling. Bolton wrote that Arpaio had shown a “flagrant disregard” for the court’s order and that this rejection of judicial authority was unacceptable. “Not only did Defendant abdicate responsibility,” she wrote, “he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.” Arpaio has yet to be sentenced—that happens in October. He could serve up to six months in jail.

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Indeed, if any American has out-Trumped Donald Trump in embodying the firm belief that no court may stop him, perhaps it is former Sheriff Joe. At his federal trial, prosecutors played video of Arpaio telling TV pundits that he would continue to jail people he considered “illegals,” as well as a video of Arpaio telling a Mexican detainee through a translator: “Nobody is higher than me. I am the elected official, elected by the people. I don’t serve any governor or any president.” It’s no wonder Arpaio is the president’s spirit animal.

Arpaio even wrote the playbook for Trump on discrediting judges based on race. As the Associated Press reports, “Arpaio was accused of launching an investigation into the federal judge who ruled against him in the racial-profiling case. Before that, he questioned the impartiality of a judge initially on the case because her twin sister leads a prominent advocacy group for Latinos.” Opposing lawyers noted that Arpaio had forwarded an email to staff members in which he referred to then–U.S. District Judge Mary Murguia as a “token Hispanic female judge.”

Trump’s contempt for and loathing of the judicial branch is almost as flamboyant as Arpaio’s—although perhaps he’s just had slightly less practice. At the very least, it seems to elicit quicker public pushback: Racist contempt for the judiciary seemed to backfire during the campaign when he went after the judge who was presiding over the Trump University lawsuit by deriding him as biased. But what was deemed disqualifying in the campaign is now just Monday chatter, and Trump’s contempt for judges went on to reach full flower when he began to threaten federal jurists throughout the sanctuary city and travel ban litigation. He has since dismissed federal judges who disagree with him as “so-called judges.” He has threatened to break up a federal appeals court. He has, in tweets and at rallies, threatened individual jurists to the point that they needed increased security. That anyone devoted to principle of judicial independence isn’t horrified at the prospect of an Arpaio pardon is the real mystery here. This is condoning racism yes, but it’s also undermining judicial processes, findings, and orders.

Probably nobody cares. That a man who has made a career of deriding and ignoring judicial rulings will likely be pardoned by a man who has built a presidency on deriding and ignoring judicial rulings is hardly shocking anymore. Judges will take note, and perhaps that’s the best anyone can hope for. But if the real moral of the story in Arizona is that two men who lost popular elections are also permanently above the rule of law, you may want to carbon date the end of checks and balances to right here.

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