Megan Cassidy

The Republic | azcentral.com

Maricopa County Sheriff Joe Arpaio was officially charged Tuesday with criminal contempt of court when a federal judge affixed her signature, a formality that throws the lawman’s political and personal future into a level of crisis never before seen in his 23 years in office.

Criminal-contempt charges have loomed over Arpaio since 2015. A criminal trial was the worst-case scenario for the sheriff after he admitted to violating a federal judge’s order to stop enforcing civil immigration laws.

U.S. District Court Judge Susan Bolton's order was signed two weeks before the general election, in which Arpaio is running for his seventh term.

A trial is set for Dec. 6 in U.S. District Court in Phoenix. If he’s convicted, the 84-year-old sheriff could face up to six months in jail.

While symbolic, the order does little to illuminate the case's potential outcomes.

It remains unclear whether the charge against Arpaio is a misdemeanor or felony. If convicted of a felony, under state law, the sheriff would have to resign his office, which could cost the sheriff his job even if he is re-elected.

Defense attorney Mel McDonald said Bolton’s order was disappointing, but expected.

“We plan on vigorously contesting each and every one of the allegations in the order to show cause,” he said.

The threat of criminal prosecution became increasingly inevitable after a prolonged series of hearings last year. A federal judge’s finding of civil contempt came in May 2016, followed by his referral for criminal prosecution in August, followed by the U.S. Department of Justice’s announcement on Oct. 11 that its attorneys would, in fact, prosecute Arpaio. A proposed order initially was submitted by prosecutors Oct. 17.

Judge explains the path to the criminal charge

Bolton’s filing walks through five years of the sheriff’s resistance to her colleague, U.S. District Court Judge G. Murray Snow, who has presided over the long racial-profiling case out of which the criminal-contempt charge grew.

The document alleges Arpaio was more interested in maintaining his famed tough-on-immigration persona than following Snow’s orders.

Can Sheriff Joe Arpaio win re-election in the face of a criminal-contempt referral?

His deputies continued to arrest and deliver undocumented immigrants to federal authorities when there were no state charges against them, long after Snow banned the practice.

“Judge Snow concluded that Sheriff Arpaio did so based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity,” Bolton wrote.

Bolton bolsters the allegation with testimony from last year’s hearings. The practice, she notes, continued even after Arpaio’s attorneys advised him to stop. The sheriff at various points told his attorneys they would revise their protocol or, falsely, that the Sheriff's Office was already in compliance.

Justice Department files proposed contempt charge against Maricopa County Sheriff Joe Arpaio

“After exhausting ‘all of its other methods to obtain compliance,’ Judge Snow referred Sheriff Arpaio’s intentional and continuing non-compliance … to another Judge to determine whether he should be held in criminal contempt,” Bolton concludes.

On Tuesday, neither prosecutors nor defense attorneys could say for certain whether the contempt charge was a felony or a misdemeanor.

Bolton has previously implied the latter, agreeing that a maximum penalty of six months in jail would be appropriate for Arpaio if he were convicted.

“I think for all intents and purposes it could be deemed a misdemeanor,” McDonald, Arpaio’s attorney, said. “I haven’t seen any place where the government has called it that, but the request for six months or less, typically that’s misdemeanor territory.”

Peter Carr, a spokesman for the Department of Justice, said Bolton would be the one to make that call. Although Justice Department attorneys are prosecuting the case, the official charge is leveled by the court.

McDonald has requested a jury trial for the sheriff.

Charge assailed as politically motivated

Arpaio could not immediately be reached for comment. In past statements, the sheriff has assailed the charge as a politically motivated plot to derail his chances at re-election.

The sheriff aired his grievances in a recent campaign commercial.

“You know, this latest action by Obama and his Department of Justice is all about illegal immigration, period,” he tells the camera, against a photo backdrop of the president, former Attorney General Eric Holder and current Attorney General Loretta Lynch. “They’ve been after me since day one, for doing my job.”

Arpaio and his supporters said it was no coincidence that the Justice Department announced the charge on the eve of early voting.

In an emailed statement, campaign manager Chad Willems said the president’s Justice Department was continuing its efforts to influence the local election.

"The Department's actions in the last 30 days before the election are further attempts to sabotage Sheriff Arpaio in his bid for a seventh unprecedented term as Maricopa County Sheriff. It is clear from the timing that the Department of Justice is merely a political tool of a corrupt Administration," the statement said. "Justice plays no part in this Department's actions and clear political motivations."

It’s possible the charge has swayed some voters. An Arizona Republic poll conducted as news of the charge broke showed Arpaio trailing Democratic challenger Paul Penzone by nearly 15 points.

Charge grew from racial-profiling case

The charges are rooted in a 9-year-old racial-profiling case against the Sheriff's Office. Plaintiffs, including the American Civil Liberties Union, alleged that the sheriff’s signature immigration patrols violated Latinos’ constitutional rights.

In December 2011, months before the trial was to begin, Snow issued a preliminary injunction over the Sheriff's Office. The order banned deputies from detaining anyone solely on suspicion they were undocumented immigrants, and without cause to believe a crime had been committed.

Arpaio’s attorney boiled the order into simpler terms: “arrest or release,” he told his client at the time.

In May 2013, Snow officially determined the office had racially profiled Latinos. The following months would introduce multimillion-dollar reforms to the Sheriff's Office, including anti-bias training, recording devices for deputies, and a court-appointed monitor to ensure the agency followed the letter of the law.

But information emerged that the office continued to detain undocumented immigrants for at least 18 months after the judge’s preliminary order — up to May 2013 and maybe beyond.

Arpaio’s attorneys didn’t deny the violations, but they said the mistakes were unintentional.

Plaintiffs’ attorneys, who pointed to Arpaio’s hard-line rhetoric on illegal immigration, argued otherwise.

The violations, along with two other allegations of the office failing to properly turn over evidence, would amount to contempt of court. A finding of accidental missteps would lead to civil contempt, while deliberate defiance could mean criminal contempt and potentially jail time.

In August, Snow referred the case to federal prosecutors for consideration of criminal-contempt charges. He recommended three separate allegations of criminal charges for Arpaio, although Justice Department prosecutors for now only have chosen to pursue one. Arpaio also may face a charge of obstruction of justice.