Criminal Justice

Sheriff Joe's Enabler

Meet Maricopa County Attorney Andy Thomas-overtly political prosecutor, abuser of power, sworn enemy of libertarianism

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By now, most of America knows the name of Maricopa County, Arizona, Sheriff Joe Arpaio. The publicity-loving self-proclaimed "Toughest Sheriff in America" made himself famous with his desert tent prisons, chain gangs, reality TV show, and, most recently, with his almost certainly illegal crackdowns on undocumented immigrants. Arpaio is now the subject of a federal grand jury investigation.

Less known, at least outside of Arizona, is Maricopa County Attorney Andrew Peyton Thomas. But prosecutor Thomas has emerged as one of Arpaio's most reliable enablers.

For all Arpaio's tough-on-crime preening, Thomas may actually be more dangerous. Before running for public office, Thomas had already written two books and made a name for himself as a pundit, penning essays and op-eds for a variety of conservative outlets, including National Review, the Wall Street Journal, The Weekly Standard, and the American Enterprise Institute. He has also surrounded himself with subordinates savvy in new media. Those who know him say that unlike Arpaio, Thomas can be personable, even charming. In short, he brings all of Arpaio's nuttery, with none of Arpaio's scowl. He also brings some intellectual heft to Arpaio's unique approach to policing, or at least the appearance of it. The scary part? Political insiders in Arizona say Thomas could well become the state's next attorney general.

The most recent mess in Maricopa pits Thomas and Apraio against…well, just about everyone else. The two have been squabbling with members of the county board of supervisors for years over the construction of a $341 million county courthouse tower, which both feel is a waste of money. They might have a point. But Arpaio and Thomas are using criminal law as a cudgel in the dispute. 

Last month, Thomas indicted two county supervisors on some petty financial disclosure violations. When Maricopa County Superior Court Judge Gary Donahoe issued a ruling pertaining to the court tower investigation that Arpaio and Thomas didn't like, Thomas then indicted Donahoe for bribery, on the absurd premise that as a judge who works in the courthouse, Donahoe (who is retiring soon) would have benefited from the new tower. That indictment came shortly after Donahoe held one of Arpaio's deputies in contempt after a highly-publicized incident in which the deputy was caught on video stealing documents from the file of a defense attorney in open court.

Using criminal charges—or the threat of them—to silence political opponents has become something of a habit for Thomas. He has indicted more than a dozen public officials who have criticized him or Arpaio. He has launched or threatened criminal investigations into dozens of others, including politicians, columnists, and other media figures who have dared to criticize him or the sheriff. When Phoenix Mayor Phil Gordon asked for a federal investigation of Arpaio's immigration enforcement tactics, Arpaio and Thomas investigated him too, attempting to snoop on Gordon's email, appointment book, and phone records. Thomas even recently threatened to criminally investigate a defense attorney for issuing public statements in support of his client.

Afer a failed run for state attorney general in 2002, Thomas was elected Maricopa County attorney in 2004, despite having never tried a felony case. As a pundit and book author, he had advocated a number of bizarre crime-fighting strategies, including instituting a law enforcement "draft," whereby all young men not already in the military would be armed with walkie-talkies and conscripted to patrol neighborhoods. In a 1997 piece for The Weekly Standard, Thomas located the "root of our crime problem" on "rights-happy radical individualism," and blamed everything from rudeness to gang activity on "the moral laissez-faire disorder of libertarianism."

Once in office, Thomas pushed for immigration enforcement (including charging immigrants for "smuggling" themselves into the country), victims' rights, and longer prison sentences. But his office made national headlines in 2005 with its child pornography prosecution of 16-year-old Matthew Bandy.

After a nighttime raid on Bandy's home, police found nine explicit photos of underage children on the teenager's computer, then charged him with enough crimes to put him behind bars for 90 years. Thomas's office refused for months to turn Bandy's computer over for an independent forensic analysis. When a court finally ordered him to do so, a defense computer analyst found the computer had been infested with malicious Trojan software capable of downloading the images without Bandy's knowledge (not an uncommon problem). As the child porn case fell apart, Thomas's office refused to let go, eventually getting Bandy to plea to a felony for showing a Playboy magazine to some of his classmates. A judge later dismissed Thomas's insistence that the plea require Bandy to register as a sex offender.

Thomas also came under fire for spending some $2.5 million in public funds on various ads, pamphlets, billboards, and other promotional campaigns allegedly aimed at crime-fighting, all of which also happened to prominently feature his name and photograph.

Nationally, Thomas and Arpaio are still right-wing darlings, winning praise and defenses from conservative outlets such as Fox News, National Review Online, the Washington Times, and Newsbusters. But locally, fellow Republicans and conservatives are raising concerns. Last month, Sheila Polk, the lead prosecutor in a county adjacent to Maricopa, wrote an op-ed in the Arizona Republic sharply critical of Thomas. Polk, a Republican, wrote, "I am conservative and passionately believe in limited government, not the totalitarianism that is spreading before my eyes." James Walsh, prosecutor in another adjacent county, wrote a letter to the editor supporting Polk. Thomas' response? He called for a criminal investigation of Polk and Walsh, too, describing their letters as "an orchestrated campaign to pressure law enforcement in Maricopa County to drop charges against influential criminal defendants and suspects."

"Andy Thomas has a reckless streak to him," says Clint Bolick, director of constitutional studies for the Goldwater Institute, Arizona's largest right-leaning think tank. Bolick, a former official in the Reagan Justice Department, was co-founder of the libertarian public interest law firm the Institute for Justice. "He's willing to use law enforcement tools in ways that are pretty blatant abuses of power."

Among the more egregious examples were Thomas' charges against the Phoenix New Times, the city's long-standing alternative weekly. In 2007, the New Times ran a series of articles on some questionable real estate deals involving Arpaio, and as part of the series published the location of tracts of land Arpaio owns, including his home address. Thomas argued that the articles violated a state law prohibiting the publication of the address of a law enforcement officer. Thomas then did something remarkable: His office issued a subpoena demanding the IP address and any indentifying information of anyone who had ever visited the New Times website. Better yet, the subpoena required the publication to turn over any information related to cookies that would reveal what other websites New Times readers were visiting.

"That may have been the broadest subpoena ever issued in the history of the United States," Bolick says. "It literally violated the rights of tens of thousands of people. Including me, I should add. I read the New Times online."

The New Times, in a conscious contravention of grand jury secrecy rules, posted the subpoena on its website, concluding that such a blatant and sweeping violation of the Constitution demanded exposure. In response, Thomas and Arpaio had the paper's owners arrested. After public outcry and criticism from First Amendment proponents across the country, Thomas was forced to drop the charges and withdraw the subpoena just one day later.

Despite all of this, Thomas and Arpaio remain enormously popular with Arizona voters. Recent polls show Arpaio would win a majority of the statewide vote should he run for governor. Thomas is considering another run for attorney general. Daniel Scarpinato, who covers state politics for the Arizona Capitol Times, says there's a good chance he'd win. "I think he's the candidate to beat right now. He's very strong with conservative voters, and as long as he isn't indicted by then, he's probably the front runner." Scarpinato is referring to the possibility of a federal indictment. Thomas' run would also be complicated by a state law requiring him to resign from his current position before beginning his campaign. Scarpinato speculates Thomas may be less likely to give up his perch if he knows he'll be facing a federal investigation.

But the fact that he could win is unsettling. The continuing popularity of Maricopa's bumbling would-be tyrants among both national conservatives and Arizona's rank and file voters is probably in part testament to the continuing popularity of the (mistaken) notions that crime is out of control, criminals are constantly getting off on technicalities, and we've hamstrung cops and prosecutors from keeping our communities safe. Arpaio and Thomas emerge from those false assumptions as system-bucking heroes.

Bolick says their perseverance is also due to the polarizing effects of the immigration debate. Immigration "is extremely divisive," he says. "In the eyes of a lot of people, because they're cracking down on illegal immigrants, Thomas and Arpaio can do no wrong. So there's justification for whatever they do, and any criticism of them on any issue is a betrayal of the cause. It's really unfortunate that it's causing a lot of good people to turn a blind eye to ineffective law enforcement and abuses of power."

Radley Balko is a senior editor at Reason magazine.