American demagogues, such as Senator Joe McCarthy, tend to over-reach in a system designed to prevent over-reach (how we can explain the lack of resistance to Bush's over-reaching, I haven't yet figured out). Eventually, these authoritarian personalities, drunk on power and their initial success take a bite they are unable to chew. In McCarthy's case, it was the Army Hearings. In Andrew Thomas' case, it is the Phoenix New Times and its founders Michael Lacey and Jim Larkin.
To bring you up to speed I will summarize the situation to date.
The New Times published a story critical of Sheriff Joe Arpaio's real estate speculations that included his home address. That story was also posted to their website. Arpiao complained that posting his address on the web site violated an Arizona statute (§13-2401) that makes it a class 5 felony to publish personal information of certain public safety officials on the web in some circumstances.
"A. It is unlawful for a person to knowingly make available on the world wide web the personal information of a peace officer, justice, judge, commissioner, public defender or prosecutor if the dissemination of the personal information poses an imminent and serious threat to the peace officer's, justice's, judge's, commissioner's, public defender's or prosecutor's safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent."
Did the Sheriff's address on the New Times website pose an imminent and serious threat to the Sheriff or his family considering that the information was easily available from other public sources, as well as the New Times' print edition? Was such a threat, if it existed, reasonably apparent to the publishers of the New Times? The Sheriff and the County Attorney maintain that independent death threats against the Sheriff, many of which can't be publicly divulged "for security reasons," make the publication a threat. Ah, patriotism and "security," the last bastions of scoundrels.
Some legislative history is needed to put this in context. The law in question was passed in response to internet-based hit lists of judges and other public officials by extreme right-wing fanatics. The law was meant to address a specific problem of how to prosecute and discourage the posting of such hit-lists on the internet, not to harass and intimidate media outlets critical of an allegedly corrupt sheriff.
So, here's where the issue gets political. Andrew Thomas decided that he would pursue this charge, despite the law's clear and manifest misapplication to this case, despite the fact that there was no way a jury would ever find that publishing the sheriff's address on the New Times' web site constituted an "imminent and serious threat" to the Sheriff (amply demonstrated by the fact that over two years have passed and Sheriff Joe is still kicking), and despite the fact there was no way it was "reasonably apparent" that publishing on the internet that which had just been printed in their newspaper could pose a such a "serious and imminent" threat. There was no reasonable prospect of success in this prosecution. A fact that Thomas is saying is his reason for dismissing the case now. What exactly changed between his attack dog siccing the Grand Jury on the New Times and now that made the case unwinnable? Bad press, one must assume. These issues Andrew Thomas will consistently and obstinately elide or dodge in his defense of having maintained the charges against the New Times for years. The reason for that evasion is that the charges are completely baseless and maintained entirely for the purpose of political intimidation of a media outlet.
Thomas recognized that no one would stand for his office pursuing these charges, because of the conflict of interest (read, his personal political motivation to pursue these charges) would be too obvious. So he passed the charges off to the Pinal County Attorney's office. They properly did nothing for almost two years; in essence, they took a 'pocket veto' approach to declining to prosecute. So Andrew Thomas pulled the case back and farmed it out to his political attack dog Dennis Wilenchik. Wilenchik used to employ Thomas while he was running for County Attorney, and thus not doing much actual work for his salary. Wilenchik recently savaged the entire Maricopa bench for failing to 'properly' interpret Prop 106, which Thomas authored. Wilenchik was dispatched as special prosecutor for Trish Groe's DUI case, and though he was unable to make it go away, he sat on it until he was sure there was no way to dismiss the charges. Wilenchik is Thomas' creature, or the other way around. In any case, it is laughable that Thomas would think anyone would believe that there was anything independent about 'special prosecutor' Wilenchik.
Wilenchik convened a Grand Jury to investigate the charge, now almost three years old. Wilenchik got the Jury to issue a subpoena to the New Times (pdf) that was grossly and abusively broad. It demanded 4 years worth of server records, including personal information on New Times internet readers that could not conceivably be relevant to the case - Wilenchik and Thomas maintain that they might find information about those responsible for death threats in that hay stack, an absurdity not worth dignifying with a rebuttal. The subpoena was clearly just more attempt at legal harassment. It was never intended that the New Times should respond to it; it was intended that New Times spend thousands in legal fees defending against it.
But then Lacey and Larkin zigged when the were supposed to zag. They published the Grand Jury subpoena instead of complying or litigating. They took the venerable 4th estate option of taking the matter to the court of public opinion. Of course, to reveal Grand Jury deliberations is a misdemeanor, so they were breaking the law by doing so, but felt it was a justifiable act of civil disobedience. The effect was overwhelming and immediate. The nation's media started turning their focus to the dust up in the desert. Media outlets, seeing themselves in the New Times' plight, editorialized harshly and covered the story with very little sympathy for the man behind the curtain: Andrew Thomas.
Wilenchik, apparently deaf to the media's immediate outrage, turned up the heat and sent out Sheriff's deputies to arrest Lacey and Larkin that very night for that misdemeanor infraction. They rousted them from homes and their families, cuffed them, and threw them in jail for 7 hours on charges that would normally warrant appearance tickets. Again, the harassment that lay at the base of this whole fiasco was made so apparent that Thomas, who by now was seriously feeling the disapprobation from all quarters, not only from the national and local media, but even from conservatives in his own political constituency, had to pull the plug on his jolly little scheme to get some payback on the New Times.
Thomas fired Wilenchik as special prosecutor, though carefully saying supportive things about his crony and keeping the door open for future work for Wilenchik from the County Attorney's office (which has already piled up billings for Wilenchik's firm in excess of a million taxpayer dollars). Thomas held a press conference to fall on his sword and dismiss the charges and admit that 'mistakes were made' in that passive-voiced admission which admits nothing that politicians are so well-versed at. In short, he cut and ran, hoping to leave the episode behind him.
But it's not going to be that easy for Thomas. You see, Andy Thomas dreams of being the Big Cheese in Arizona. The Governorship is the prize his eyes have been on all along. But with the national media now clued-in as to who and what Andrew Thomas really is: a snarling little rat terrier-sized Joe McCarthy, the only votes he's going to be getting are from folks who think that Ann Coulter has sound judgment. Even prudent Republicans are sounding the alarm about Thomas' judgment and respect for civil liberties, free press, and personal privacy. Thomas can duck and try to hide behind the bogus 'special prosecutor' he created of Dennis Wilenchik. He can claim that he's not responsible for the excesses of Wilenchik in prosecuting the case, but nobody believes that Thomas didn't know and approve of what Wilenchik was doing.
We know better, and the State Bar knows better. A complaint has been filed against Wilenchik and Thomas as a result of this fiasco. I can only hope that both will be disciplined and/or disbarred. But their over-reaching doesn't stop there. A whole raft of Maricopa County Superior Court Judges, whom Wilenchik tried to get recused from all cases involving the County Attorney (in essence, all those Judges' cases) because they disagreed with Thomas' interpretation of Prop 106, have filed an ethics complaint against Thomas, too. Andrew Thomas has stepped in it, and he deserves every moment of discomfort and distress it may cause him.
Andy Thomas has over-reached. He tried to harass the fourth estate by misusing the powers of his office in a calculated political vendetta. He tried to bait and discredit the whole Maricopa criminal bench just to score political points. He bit off way more than he could chew. He has just had his own Joseph Welch moment. Now people are seeing him for what he is and they aren't going to trust him with elected power ever again. That means Mr. Thomas can kiss his dreams of the Governor's office goodbye. All one ever has to do now to ensure his defeat is remind people of how he behaved during the New Times Affair.
"You've done enough. Have you no sense of decency, Mr. Thomas, at long last? Have you left no sense of decency?"