There’s no shortage of opinion on whether Arizona sheriff Joe Arpaio has done anything wrong. Almost ignored, however, are the Justice Department lawyers investigating him. Yet their conduct raises serious questions — namely, have their liberal bias and apparently unethical tactics caused fundamental flaws in their investigation?
The Department’s Civil Rights Division is investigating how Arpaio, the Maricopa County sheriff, treats illegal immigrants when he arrests them. Meanwhile, the Department of Homeland Security is auditing his participation in a federal program — commonly referred to by its statutory citation, “287(g)” — that allows local police departments to enforce federal immigration laws. Arpaio, whose office is the largest participant in the DHS program, has been accused of improperly launching “crime sweeps in areas around Phoenix with high concentrations of Hispanics” as well as “separating” illegal immigrants from other inmates that he has arrested.
It’s impossible to know at this point whether any of the criticisms of Arpaio have merit. Maricopa County Attorney Andrew Thomas, who wrote the legal guidelines for Arpaio’s crime-suppression operations, insists that that he isn’t “aware of any racial profiling in Arpaio’s crime and immigration sweeps” and notes that Arpaio has simply saturated neighborhoods deemed to be high-crime areas. Regardless, the Justice Department may have a lot more to answer for than Arpaio.
Arizona is on the front lines of the immigration crisis confronting the American Southwest. As thousands of illegal immigrants flood across the border — many engaging in violent and drug-related crimes, choking the local court systems and otherwise imposing heavy economic costs on Arizona communities — Arpaio has been a visible force in local enforcement of federal immigration laws.
Not surprisingly, Arpaio has incurred the wrath of those on the left who oppose immigration enforcement in general, and especially local enforcement of federal immigration laws. Many would like to see the 287(g) program terminated. Unfortunately, the Civil Rights Division’s Special Litigation Section (SPL), which initiated the investigation of Maricopa County, appears hell-bent on aiding these groups’ efforts. SPL has a bad track record enforcing poorly defined and constitutionally questionable legal standards, and it has already been accused of unethical conduct in this case.
The problems started several months ago. In February, Democratic Reps. John Conyers, Zoe Lofgren, Jerrold Nadler, and Bobby Scott demanded that the Department of Justice investigate Sheriff Arpaio for “discriminatory” police practices toward illegal aliens, despite having no evidence of such behavior. (Two House Judiciary subcommittees have already held hearings on Arpaio’s conduct and found no actual proof of wrongdoing) The Civil Rights Division launched an investigation within a month. This rushed approval is ironic, given Conyers’s obsessive plaints about the “politicization” of Justice in the Bush administration.
SPL has a long history of harassing law-enforcement agencies. Part of the reason for this abuse is that the federal law governing SPL’s jurisdiction — 42 U.S.C. § 14141 — is so nebulous. Congress adopted this statute in 1994 in the wake of the Rodney King case. It allows the Justice Department to investigate law-enforcement agencies that have engaged in a “pattern or practice” of unconstitutional or unlawful conduct.
But the statute doesn’t define “pattern or practice” or the time period over which such a “pattern or practice” must occur. As a result, SPL has almost no standards (and no limits) under which it conducts its investigations. Enforcement is typically left to the vagaries of the biased liberal career attorneys who populate the Section, few (if any) of whom appreciate the extraordinary demands under which local law-enforcement officials toil.
On rare occasions, local police departments have established practices that are unlawful. For example, in 2002, Detroit was detaining witnesses for questioning without probable cause, an obvious violation of the law. Similarly, prior to 2004, the police department in Prince George’s County, Md., was training its dogs to bite before barking, needlessly inflicting injuries on suspects.
Far more often, however, SPL predicates an investigation on a handful of unconnected and isolated incidents separated by big gaps in time. If there are a few alleged acts of unlawful conduct over a several-year period in a department of thousands, does that really constitute a pattern or practice of intentional behavior? No reasonable person would think so, but the lawyers in SPL would.
Moreover, one of the Civil Rights Division’s little-known secrets — one that should concern many Americans — is that SPL attorneys, to justify opening an invasive investigation, typically do little more than troll through newspaper articles or contact the local ACLU or NAACP chapter to find complaints.
In other words, an attorney who wants to make life miserable for a particular police department is entrusted with enormous power to do that. So when a radical like Conyers harrumphs that “something must be done,” it should come as no shock that an ideologically receptive SPL lawyer is often only too happy to be his stooge.
In fact, the deputy section chief assigned to the Maricopa County case admitted to Arpaio’s lawyer that “media reports,” not actual evidence of any violations of the law, provided the only basis for the investigation. The Department of Homeland Security, which started its audit at almost the same time that the DOJ investigation began, admitted to the same lawyer that it had no record of any complaints about Maricopa’s conduct in administering the 287(g) program.
But Homeland Security Secretary Janet Napolitano certainly has a contentious history with Arpaio. When she was governor of Arizona, she cut off his state funding to pursue illegal immigrants. As Maricopa’s lawyer, Bob Driscoll, has argued, when one law-enforcement agency becomes subject to several federal investigations in a matter of weeks immediately after a shift of political control in Washington, it seems to suggest that politics played a role in the decision.
The chances that SPL will conduct an unbiased review are practically nil. Once SPL opens up an investigation, it almost always finds violations amounting to a “pattern or practice” of unconstitutional or unlawful conduct. One former Division lawyer recalls that early in the Bush administration, a civil-rights inquiry into the Miami-Dade Police Department yielded insufficient evidence to justify continuing a “pattern and practice” investigation. This outcome was so unusual and unprecedented that the SPL chief at the time, Steven Rosenbaum, refused to sign a letter acknowledging the absence of any constitutional violations. Rosenbaum said it was not DOJ’s obligation to clear up the cloud that had gathered over the jurisdiction because of adverse publicity over the investigation.
Rosenbaum is now in the front office of the Civil Rights Division, temporarily occupying what is usually a political slot, advising the acting assistant attorney general and supervising the Maricopa County investigation. (Coincidentally, the deputy assistant attorney general who had to sign the letter to Miami-Dade after Rosenbaum’s insubordination was Bob Driscoll, who now represents Maricopa County.) In short, SPL will find something to complain about.
Another fundamental problem with SPL investigations is that the SPL attorneys (none of whom has any training in investigatory techniques) almost always credit the complaints of aggrieved citizens without question. Anyone who has experience with the criminal-justice system (or, for that matter, has watched an episode of Cops) knows that criminals frequently lie to extricate themselves from a legal bind. When SPL attorneys who are inclined to believe the very worst about law enforcement routinely assess such complaints as true, the police will be chilled from performing their job in the manner best able to protect the community.
As you might guess, most of the attorneys who inhabit SPL are extremely liberal. The deputy chief handling most police-misconduct investigations (including this one) is a former public defender in Maryland. One of SPL’s lawyers was actually arrested during a mass demonstration in Washington in 2002 protesting “globalization” at the IMF and World Bank. (The D.C. government later settled a lawsuit she filed against the city’s police department.)
More incredible still, the attorney assigned to the Maricopa County investigation, Je Yon Jung, is an active member and former national governing-board representative of the National Asian Pacific American Women’s Forum, a left-wing organization that believes all “undocumented” immigrants should be granted citizenship. Ms. Jung maxed out in contributions to President Obama’s campaign and recently applied for a judgeship in the District of Columbia — a position to which President Obama will appoint a candidate.
It doesn’t take much of an imagination to guess the attitudes of these career lawyers toward the police, and particularly anyone enforcing federal immigration laws. Keep in mind as well that in April the Justice Department issued a “100 Day Progress Report,” in which it treated the mere decision to open the Maricopa County investigation (with no evidence of any wrongdoing) as an “accomplishment” in the “revitalization” of the Department’s civil-rights efforts.
Would an obviously ambitious attorney who has applied for a presidential appointment really want to disappoint or embarrass her political leadership by finding that there was no violation of the law — when they have already taken credit for the investigation as a civil-rights victory? She has, in fact, already been accused of unethical conduct by Maricopa attorney Driscoll, for not revealing to the county’s in-house counsel that SPL was coordinating its investigation with the Department of Homeland Security. Her deception was designed to get witness statements and documentation directly from Maricopa County employees through the completely separate DHS audit, even though she knew Maricopa County was represented by counsel.
In other words, Justice was using agents of DHS to contact and interview represented parties without any legal authorization or consent from their lawyers. This behavior violates professional rules of conduct. Under the District of Columbia’s bar rules, “a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person known to be represented by another lawyer in the matter.”
Jung also appears to have used Homeland Security’s audit to surreptitiously obtain information she could not obtain through the SPL investigation, because Section 14141 does not endow DOJ with subpoena power. The Ethical Standards for Attorneys for the Government make it clear that when an attorney does not have the authority or right to engage in an activity, the government cannot delegate or direct an agent to do so either.
Unidentified lawyers in the Civil Rights Division also called the Justice Department’s Community Relations Service, apparently trying to get information about its dealings with Maricopa County. This might sound innocuous, but the federal law that established the CRS specifically mandates that all information obtained in its community-service work is “confidential,” and that none of its employees can “engage in the performance of investigative or prosecuting functions.” Thus, lawyers in the Division were trying to get CRS lawyers to break federal law by divulging confidential information. Driscoll has asked DOJ’s Office of Professional Responsibility to investigate this unethical conduct. (OPR was certainly quick enough to open up such investigations during the prior administration.)
Fortunately for SPL, it almost never has to prove its factual findings in court, a situation that effectively allows the Section’s lawyers to make whatever unproven accusations they want with no repercussions of any kind. Indeed, SPL has never had to defend in court its determinations of what constitutes a “pattern or practice.” The Section’s usual reliance on hearsay evidence, newspaper reports, and congressional complaints would be highly unlikely to satisfy the federal rules of evidence. Moreover, by the definition of “pattern or practice” that the Supreme Court established in the context of Title VII of the Civil Rights Act of 1964 — according to which a “pattern or practice” must consist of more than “sporadic discriminatory acts” — many (if not most) of SPL’s investigations would be quickly thrown out.
Unfortunately, most law-enforcement agencies are afraid to challenge the Civil Rights Division, even when its claims are completely bogus, for fear of both the adverse publicity and the extraordinary cost of battling a litigant with unlimited taxpayer-provided resources. On one of the only occasions when a police department did stand up to the Division (United States v. City of Columbus, Ohio), a federal judge threw out the Division’s claims, but most cities have not been so bold, and have simply agreed to consent orders that get no real review by federal judges.
The Civil Rights Division is also parachuting in its attorneys from the Coordination and Review Section (one of whose staff lawyers is a former illegal alien) to probe whether Sheriff Arpaio has engaged in “national origin discrimination” against illegal aliens, including failing to provide “meaningful access” to county services for “limited English proficient” inmates. What is the basis for this claim? Apparently, the Division equates the failure to provide translation services to illegal aliens with “national origin discrimination.” This interpretation, however, has no valid statutory or constitutional foundation.
Local jurisdictions are under no obligation to provide services in any language other than English. That many states and municipalities provide their services in the common language of our culture is not national-origin discrimination. But the Civil Rights Division mistakenly believes that the lack of translation services has a “disparate impact” and thus violates regulations issued pursuant to Title VI of the Civil Rights Act of 1964 and an executive order issued by President Clinton.
This was the argument that the Division pressed before the Supreme Court in December 2000 in Alexander v. Sandoval, which involved Alabama’s refusal to provide driver’s-license tests in languages other than English. The Supreme Court rejected the argument in April 2001, holding that it would make no sense “to say that disparate-impact regulations” properly implement Title VI when the statute bans only intentional discrimination on the basis of national origin.
The general attitude that I encountered when working with the career lawyers in the Division mirrors the attitude of radical groups like La Raza and MALDEF — they believe in open borders and no enforcement of our immigration laws. Given that President Obama’s nominee to head the Division, Thomas Perez, is the former head of Casa de Maryland, an advocacy organization for illegal aliens that has fought the enforcement of our immigration laws, he will no doubt be delighted with this investigation.
Again, it is impossible to tell from the news accounts whether Sheriff Arpaio actually violated any federal civil-rights laws while participating in the 287(g) program. But there is strong evidence that this investigation was instigated for ideological (and perhaps political) reasons. And given the history of the Civil Rights Division, Sheriff Arpaio’s chances of getting a fair and impartial investigation are about as great as those of the Washington Redskins’ winning next year’s Super Bowl.
– Hans A. von Spakovsky is a legal scholar at the Heritage Foundation. He is a former member of the Federal Election Commission and a former counsel in the Civil Rights Division at the Justice Department.