The president admires strong men who break the law to enforce it.
Three days before Donald Trump pardoned Joe Arpaio, he suggested that the former Maricopa County, Arizona, sheriff was "convicted for doing his job." In reality, Arpaio was convicted for doing someone else's job by enforcing federal immigration law.
When a federal judge told him to cut it out, Arpaio openly defied the order. By giving a pass to Arpaio's criminal contempt, the president reveals the hollowness of his supposed commitment to law and order.
Beginning in 2007, specially trained Maricopa County deputies had authority under Section 287(g) of the Immigration and Nationality Act to detain people they believed to be in the country illegally. But after Immigration and Customs Enforcement (ICE) revoked that authority in 2009, Arpaio's deputies could legally detain people only if they reasonably suspected they were involved in criminal activity, as opposed to a civil violation of federal immigration law.
U.S. District Judge G. Murray Snow made that point clear in a 2011 preliminary injunction, ordering the Maricopa County Sheriff's Office (MCSO) to stop "detaining persons for further investigation without reasonable suspicion that a crime has been or is being committed." Responding to a lawsuit filed by the American Civil Liberties Union, Snow said "MCSO and all of its officers are hereby enjoined from detaining any person based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States."
It is clear that Arpaio understood the meaning of Snow's injunction. "If you just believe or you know that [someone] is in the country unlawfully," MCSO's lawyer explained to the sheriff, "you cannot detain him based on that alone. You either are to have an arrest based on state charges or you release. Those are the options."
Arpaio, whose reputation, local popularity, and electoral success depended largely on his efforts to catch illegal immigrants, did not like those options. He therefore decided to ignore the injunction, and he made no secret of that decision.
"I'm still going to arrest illegal aliens coming into this country," Arpaio said on PBS in 2012. "I'm going to continue to enforce state laws and federal laws," he told Fox News.
"Nothing has changed," Arpaio told Univision. According to a 2012 MCSO press release, "Arpaio remains adamant about the fact that his office will continue to enforce both state and federal illegal immigration laws."
The sheriff was true to his word. After Snow issued the preliminary injunction in December 2011 and before he made it permanent in May 2013, the MCSO's so-called Human Smuggling Unit (HSU) turned over to ICE 171 people who were not charged with a crime.
It is not hard to see why another federal judge, Susan Bolton, concluded last month that Arpaio had "willfully violated" Snow's order, making him guilty of criminal contempt. He was scheduled to be sentenced in October until Trump's pardon let him off.
Trump thinks Arpaio, an early supporter of his presidential campaign, is a "great law enforcement person" who "was treated unbelievably unfairly." The important thing for Trump is that Arpaio, like him, is "very strong on illegal immigration."
A 2011 report from the Justice Department gives you a sense of what Arpaio's strength looked like in practice. Examining traffic stops by MCSO deputies, the DOJ found that Latino drivers were "four to nine times more likely to be stopped than similarly situated non-Latino drivers."
According to the DOJ, about one-fifth of the HSU's reports on traffic stops, "almost all of which involved Latino drivers, contained information indicating that the stops were conducted in violation of the Fourth Amendment's prohibition against unreasonable seizures." Many of the people detained by Arpaio's deputies were, like the plaintiffs in the ACLU lawsuit, in the country legally but targeted for harassment because of their skin color or accents.
Strong men like Arpaio and Trump believe enforcing the law may require breaking it. But to those who suffer the consequences, that kind of strength looks a lot like lawlessness.
