This column by ACRU Fellow Ken Klukowski was published April 16, 2017 by Breitbart.
Deep-state prosecutors at the U.S. Department of Justice (DOJ) seek to throw 85-year-old Arizona Sheriff Joe Arpaio behind bars in a federal prosecution plagued by egregious violations of due process and federal law unless the new leadership at DOJ reconsiders the matter.
In 2007, the ACLU and the DOJ Civil Rights Division brought a racial profiling lawsuit against Arpaio and the Maricopa County Sheriff’s Office, the Arizona county where Phoenix is located. It continued all the way through the Obama presidency, under Judge G. Murray Snow of the U.S. District Court for the District of Arizona.
Snow held a civil contempt trial which some claim was timed to impose maximum political damage upon Arpaio. It is undisputed that the trial was entirely unnecessary because Arpaio had agreed to stipulate to the contempt charges to avoid the politically damaging trial, but Snow demanded a public proceeding. After the trial, Snow held Arpaio in civil contempt, then referred Arpaio to the DOJ for prosecution for criminal contempt.
Arpaio’s supporters cry foul that DOJ likewise timed its actions to harm Arpaio politically, announcing on the eve of Election Day 2016 that it would prosecute Arpaio for criminal contempt. Moreover, the DOJ is now insisting on jail time for Arpaio despite his very advanced age, threatening to take the 85-year-old sheriff away from his wife, who is battling cancer.
Perhaps the most suspicious aspect is that the DOJ is limiting the potential jail time to six months. That cap is important because the Supreme Court has held that the Constitution does not require a jury trial for matters where the maximum imprisonment does not exceed six months. By keeping to this limit, the DOJ is guaranteeing that Arpaio’s fate will be decided by a federal judge, not by a jury of his peers in Arizona.
Arpaio’s case is riddled with problems.
The first problem is that the federal judge in this case, Snow, was required to recuse himself under federal law. Federal law at 28 U.S.C. § 455(b)(5)(ii) commands a judge to remove himself from a case if an immediate family member “is acting as a lawyer in the proceeding.” Snow’s brother-in-law is a partner at Covington & Burling, which was representing the other side of the lawsuit. Yet not only did Snow refuse to recuse himself, but he also did not even disclose his family’s involvement in the case to the other parties in the lawsuit.
In flagrant violation of federal law, once the conflict of interest became public, Snow requested and received a waiver from Arpaio’s attorneys, allowing him to stay on the case. Snow admitted that he was aware of the illegal conflict, adding that “it would have been the better course to notify the parties.” But the waiver itself is illegal, as 28 U.S.C. § 455(e) explicitly mandates that a judge’s disqualification can never be waived when a family member is involved.
Federal law also specifies that a judge must recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” There is ample cause for that here.
According to court documents, Snow’s wife told a friend that the judge “hates” Arpaio and “will do anything to get [Arpaio] out of office.” This statement was overheard both by the friend’s husband and also by their son. When the allegation was raised in open court, Snow did not deny that it was true, yet nonetheless continued to preside over the case rather than recuse himself.
Snow has also now admitted that he has had unauthorized ex parte conversations about the case. (“Ex parte” refers to the judge speaking with only one party to the case, sometimes without the other party’s knowledge. Due process generally requires that a judge never speak to lawyers for one side of the case without lawyers for the other side being present.)
When the judge appointed a monitor to supervise the sheriff’s office, he authorized that monitor to speak ex parte with only one party at a time. But it became clear late in the case that Snow was then having private conversations with the monitor, opening a conduit by which the plaintiffs were able to communicate directly with the judge without Arpaio’s team being present or knowing what was said. It’s now been revealed that these ex parte communications included the grounds for contempt, for which Arpaio now faces jail time.
Snow began discussing contempt when allegations surfaced that the sheriff’s office might have violated the court’s orders. Because this was happening as Arpaio’s reelection was underway, he decided to consent to a finding of civil contempt and agree to corrective measures in his department to resolve the matter quickly.
But Snow refused to take yes for an answer and insisted on a trial, which he dragged out for 21 days. The judge went so far as publicly saying he was “interested in sending a message” to Arpaio and wanted the career lawman to have “skin in the game” by ordering him to pay civil penalties out of his personal pockets.
The judge then took things a step further by referring the matter to Barack Obama and Loretta Lynch’s DOJ, recommending criminal prosecution. Snow ordered this criminal referral 11 days before Arpaio’s primary to be renominated for sheriff.
Arpaio survived the primary election but, with timing that looks too good to be a coincidence, the DOJ publicly announced on October 11, 2016 — the day before early voting began in Arizona — that the Obama administration would prosecute Arpaio on criminal charges.
Judge Susan Bolton — appointed by Bill Clinton — is presiding over the criminal trial that was brought by the Obama-Lynch DOJ. Although Bolton had the option of allowing a jury trial even for less than six months in jail, she refused to do so. She also refuses to allow any exploration of the DOJ’s motivations, including the previous administration’s outspoken opposition to Arpaio’s law-and-order policies regarding illegal aliens.
Arpaio is arguing through his lawyers that the judge should allow a jury trial because “the people’s voice should be heard one last time in determining whether the criminal contempt” sanction should be imposed. DOJ prosecutors oppose this position, even though that is the entire purpose of the Sixth Amendment’s jury-trial process.
Unless something changes, Arpaio is expected to stand trial next month where one Clinton-appointed judge will decide whether to send this elderly and outspoken Republican law enforcement officer to jail for up to six months, a jail where many of the inmates were put behind bars by him.