The conviction of former Maricopa County Sheriff Joe Arpaio for criminal contempt is being serially misrepresented. The misrepresentations are material to the question of whether President Donald Trump should have pardoned Arpaio.

Arpaio’s criminal conviction is routinely, in fact almost invariably, described in one of two ways. Either that he continued to engage in racial profiling despite a court order to stop. Or that he continued with immigration sweeps contrary to a court order to abandon them.

Both descriptions are inaccurate and misleading.

He was ordered not to enforce federal law

In the underlying civil case, federal Judge G. Murray Snow did find that Arpaio had unconstitutionally used race in making traffic stops in an effort to find illegal immigrants. In fact, it was the central finding in the civil case.

Snow’s remedial orders, however, went far beyond simply forbidding the use of race in initial traffic stops. He ordered Arpaio to get out of the immigration enforcement business altogether. Even with a legal stop, Arpaio was to either charge people with a state crime or let them go. No detaining them or turning them over to federal officials for immigration violations.

It was this edict to get out of the immigration business altogether that federal Judge Susan Bolton found Arpaio in criminal contempt for violating.

That Arpaio willfully and knowingly violated this part of the order is hard to contest.

Arpaio repeatedly said publicly he was still going to enforce federal immigration laws. He turned in more than 170 people to federal immigration officials without charging them with state crimes. He told a subordinate that if Immigration and Customs Enforcement wouldn’t take illegal immigrants that the sheriff’s office encountered, to take them to the Border Patrol.

A pardon would not endorse racism

However, Bolton’s decision does not include a finding that the sheriff’s office continued to illegally use race in initial stops, or any other legal problem with the initial stops. It was what the sheriff’s office did after the stop – turn people over to the feds for immigration violations without charging them with state crimes – that Bolton found in criminal contempt of Snow’s civil orders.

This distinction undermines one of the principal arguments made against a pardon.

According to the more excitable opponents, pardoning Arpaio would be an endorsement by Trump of racism. This plays into the narrative of the left that Trump himself is a racist. One racist pardoning another is the way it is being framed.

But Arpaio wasn’t criminally convicted for illegally using race in traffic stops. He was criminally convicted for turning illegal immigrants over to federal officials. And here things get messy.

ATTORNEY:A pardon is the only way Arpaio will find justice

Federal law explicitly authorizes local law enforcement to communicate with federal officials about the immigration status of those they encounter. State law requires local law enforcement to follow up on reasonable suspicion of illegal presence when practical to do so.

So, arguably, Snow’s order prohibited Arpaio from doing what federal law allows and state law mandates. When Trump said in Phoenix that Arpaio was convicted for doing his job, there’s a basis for that point of view.

But Arpaio doesn't deserve a pardon

Now, I don’t support a pardon for Arpaio. He was a lousy cop, a crummy administrator and a menace to the rule of law.

Singling out people based on their race for disproportionate law enforcement scrutiny, as Arpaio unquestionably did with his immigration sweeps, violates the fundamental founding principles of our country.

Before that, Arpaio trampled all over procedural rights and protocols in pursuit of his nutty conspiracy theory, hatched with former County Attorney Andrew Thomas, involving the Board of Supervisors, its staff, and some judges.

And even if Snow’s order was an overreach, Arpaio’s duty was to obey it while appealing it. Arpaio’s career ending with a criminal conviction is fitting.

None of these distinctions and nuances likely entered into Trump’s decision to pardon Arpaio. Arpaio is an important ally and symbol on one of Trump’s signature issues, illegal immigration. The facts don’t matter to him.

By serially misrepresenting what Arpaio was found in criminal contempt for doing, opponents of a pardon have demonstrated that facts don’t matter to them either.

Reach Robb at robert.robb@arizonarepublic.com.

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