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.

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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.