Update: President Trump pardoned controversial former Sheriff Joe Arpaio for a misdemeanor criminal contempt conviction on Friday, August 25th. A statement issued by the White House Friday night read: "Today, President Donald J. Trump granted a Presidential pardon to Joe Arpaio, former Sheriff of Maricopa County, Arizona."
There wasn't much good news for Democrats on November 8th, the night the GOP gained control of both the House and the Senate and Donald Trump laid a surprise claim to the White House. One of the only few bright spots to be found was down in Arizona's Maricopa County, where Sheriff Joe Arpaio was finally dislodged from office after 24 years in power.
Eighty-five-year-old Arpaio, "America's toughest sheriff," as he liked to be called, had grown famous institutionalizing racial profiling, neglecting to pursue sex crimes, abusing power and proudly presiding over Tent City, an outdoor jail where prisoners, forced to wear pink underwear, slept in Korean War-era tents and temperatures sometimes reached 120 degrees.
In April, six months after Arpaio's defeat, Tent City was shuttered. In July, the former sheriff was convicted of criminal contempt of court. Arpaio's conviction was the culmination of of a decade-long legal saga over Arpaio's directive instructing officers to detain individuals they suspected were in the country illegally, even if those people had not committed a crime.
In 2011, a federal judge had ordered Arpaio to halt the program while a lawsuit filed by groups including the ACLU made its way through the court system. Arpaio repeatedly refused the order, calling it "ludicrous" "crap." The ACLU ultimately prevailed in that suit; in 2013, the same judge found Arpaio's policy systematically violated the rights of Latinos. Arpaio, who faces a maximum sentence of six months, is set to be sentenced October 5th.
But he may not serve any time at all if Donald Trump makes good on his promise, made during a raucous rally in Phoenix Tuesday, that Arpaio, an early and vocal supporter of Trump's, will be "just fine."
After bashing, but not naming, Arizona Sen. John McCain, who is undergoing treatment for brain cancer, and his colleague Jeff Flake, Trump asked the audience how they felt about Arpaio. "Was Sheriff Joe convicted of doing his job?" the president asked the crowd in Phoenix, to chants of, "Pardon Joe!"
"He should have had a jury," Trump said, perhaps in reference to a campaign mounted by groups like the United Liberty Coalition in early August.
"You know what? I'll make a prediction. I think he's going to be just fine, OK? But I won't do it tonight, because I don't want to cause any controversy. Is that OK? All right? But Sheriff Joe can feel good," Trump said.
If the president does in fact pardon Arpaio – and all usual caveats about the president's unpredictability, propensity for lying and poor track record delivering on promises apply – it would be unusual. The usual process, conducted through the Justice Department's Office of the Pardon Attorney, requires that several thresholds be met: All "other forms of judicial or administrative relief" must have been exhausted, petitioners are supposed to wait at least five years after conviction or release before applying, they have to accept responsibility for their actions, and, usually, the FBI has to review the case too.
Trump appears poised to throw all precedent and procedure out the window. The White House has reportedly prepared paperwork and talking points in the case he does officially pardon him. According to CNN, "One of the talking points is that Arpaio served his country for 50 years in the military, the Drug Enforcement Administration and as Arizona's Maricopa County sheriff, and that it is not appropriate to send him to prison for 'enforcing the law' and 'working to keep people safe.'"
The ACLU, which has said an Arpaio pardon would amount to an "official presidential endorsement of racism," is circulating a petition against such a move; more than 100,000 have added their names so far. Human Rights Watch also is discouraging a pardon. But it was Vanita Gupta, the head of the DOJ's civil right division under President Obama and now president of the Leadership Conference on Civil and Human Rights, who put the finest point on it, saying in a statement, "If President Trump uses his power to pardon a discredited law enforcement official who persistently engaged in illegal racial profiling of the Latino community, it will not be a dog whistle to the so-called 'alt right' and white supremacists, but a bull horn."