Lawfare Daily: Sheriffs and ‘The Highest Law in the Land,’ with Jessica Pishko

[Intro]

Jessica Pishko: People vote for their sheriff based on, do they know the guy. I mean, that is in most places how sheriffs get elected. People were not voting for sheriffs based on like, does he support the policies of Donald Trump or of George Bush or of Ronald Reagan. Like, that was just not how people thought about this. Now, increasingly, that is how people think about it.

Tyler McBrien: It's the Lawfare Podcast. I'm Tyler McBrien, managing editor of Lawfare with Jessica Pishko, an independent journalist and lawyer who's been writing about the criminal legal system for a decade with a focus on the political power of law enforcement officials.

Jessica Pishko: There's something about, again, their attitude, right? So if you look at what the right is saying right now, they're saying, you know, we don't want federal law enforcement. We don't want to spend money. They're corrupt. They're career bureaucrats. Sheriffs are sort of the opposite. They're elected. They're populist.

Tyler McBrien: Today we're talking about Jessica's new book, “The Highest Law on the Land: How the Unchecked Power of Sheriffs Threatens Democracy.”

[Main Pocast]

So Jessica, I think it's fair to say that your book is about sheriffs. It is also about many things. It's about the far right. It's about democracy. It's about interpretations of the Constitution. But the main theme, the main topic are sheriffs. So by way of introduction, I wonder if you could tell us a bit about why you chose to write a book about sheriffs. How did you become interested in this specific aspect of the criminal justice system of law enforcement in the United States?

Jessica Pishko: Yes. So first I'm just going to define really quickly what a sheriff is, because just so everyone is, we're all on the same page, exactly what we're talking about.

So a sheriff is the elected law enforcement officer for the county. And so for most people, and probably most listeners, you likely live in an urban area. And so you are probably primarily policed by a police chief in an urban police force, but you also live in a county. And so if you live in a suburb or a more rural area, you likely already know that the sheriff is the person who does most of the policing in your area.

And the second thing sheriffs do that's very important is that they run county jails. So about 85 percent of county jails are run by sheriffs. So when you elect a sheriff, you're really electing two things. You're electing a law enforcement officer and you're electing a jailer for the county.

So, I had been working on criminal legal reform for some time and one of the things I was very interested in as I worked on prison reform and then I was working on California's realignment process. So at the time I was living in California. And the United States Supreme Court ruled that California had to reduce its prison population. And one of the ways that California did that was a process they called realignment, which meant that they started sending people who would normally be in a state prison back to their county jail.

And what that meant practically for California, all of the jails in California are run by sheriffs. So what that practically meant was that sheriffs suddenly had a lot more people in their custody and they were getting more money. And very quickly when this process happened, county jails started to become very dangerous. And sheriffs across the state started to say that their jails were more dangerous and their argument was both that they were overcrowded, but also that they were getting individuals who had been convicted of crimes who perhaps ought to be in a state prison.

And in this process, I talked to a lot of different sheriffs, and what I found out was that they were doing wildly different things. They were all given some state money, and some people were doing perhaps more reform style things. They were split sentencing, which means that you might spend part of your time in the jail, and part of your time at home with an ankle monitor, or on home arrest, or in some sort of work program.

And some sheriffs were just building bigger jails. And some sheriffs were doing neither, so they were just overcrowding their jails. And so that got me on this process thinking about what it meant to have a local law enforcement officer who is elected and who is also both a jailer and police. So in a sense, right, sheriffs control both the inflow of people into the jail but they also get to control everything that happens to someone in a jail.

So similar to in California, right, these elected officials were deciding what kind of conditions people lived in. Were you going to get a split sentence or were you going to get crammed into an overcrowded jail? What kind of medical care were you going to get? Were you going to be able to visit with your family in person or would it only be video calls? What kind of medical care would you get?

Were people going to be separated? So, some places might separate, let's say you have individuals waiting for trial. These are the individuals who have already been sentenced. Would you be separated or would you just all be housed together? On all these decisions were just being made by an elected official.

I don't know that people necessarily thought about that when they were electing their sheriff. And that got me really interested in thinking about what it meant to have elected police. What did it mean that we had these officers who were running jails and who, you know, over time, in the process of research, I found were wildly much more conservative than other elected officials, who had a kind of indefinite power. Their powers are largely undefined. They kind of expand and contract.

And also, honestly, it was just a topic that a lot of law researchers, certainly almost no lawyers I knew, had researched it. And so really basic things were not known. Like What does it take to be a sheriff? What exactly are their duties? How do we understand what they do? How do we remove them?

And so for me, that just opened the door to say, well, we don't even know what sheriffs do in every state. So that's really where I started with just very basic information.

Tyler McBrien: Realignment is such a great, benign, bureaucratic word. I love, I love language like that.

Jessica Pishko: It is. It sounds like we're just realigning where people live.

Tyler McBrien: Yeah. Who would be against that?

Jessica Pishko: Who's against that?

Tyler McBrien: I want to get a sense of the scale. So you mentioned that sheriffs play a fairly large carceral role. Can you just put on the table, you know, how many sheriffs there are, how many counties? Either the percentage or the, just the amount of people that they jail or, or in prison. What's the, the scale here also vis-a-vis other forms of law enforcement, like police departments?

Jessica Pishko: Sure. So just to kind of set the big stage in this country, we have around 18,000 different law enforcement agencies.

It's a lot of law enforcement agencies. And that includes everything from like university to small town police departments that might have one or two officers, to federal agencies like the ATF or DEA, something like that. So that's, it's a lot of law enforcement agencies, right? So this universe of many, many law enforcement agencies, all with different but overlapping jurisdictions.

So in terms of sheriffs, there are about 3,000 sheriffs in the United States. The vast majority of them are elected. There are a very small handful of non-elected sheriffs, just so people know, in case you are in one of those small places where you have an appointed sheriff. Namely Seattle, the county that encompasses Seattle has an appointed sheriff.

And almost every state has sheriffs. So the exceptions are Connecticut, Rhode Island, Alaska, and Hawaii. Well, Connecticut and Rhode Island have counties but not sheriffs. Alaska and Hawaii don't have counties so they just don't have county sheriffs. And in most of those places, the sheriffs generally have policing capabilities over the entire county. So a county might include a few cities, right? So one of the important things about sheriffs is that their jurisdictions largely overlap that of law enforcement agencies.

And just kind of like basic stats, right? So, sheriffs and their deputies are about 25 percent of the working sworn officers. And that's a lot when you consider the fact that that's 3,000 sheriff's offices out of like 18,000 different law enforcement agencies.

And one of the reasons why sheriffs do hire more people is because sheriffs run these county jails. And the size of a sheriff's office can vary wildly, right? I mean, you have something like the Los Angeles County Sheriff's Department, right, which has tens of thousands of employees. The Cook County Sheriff's Office, very large. Houston, the county that encompasses Houston, Harris County, very large sheriff's offices.

And then you have some sheriff's offices, which are really small. They might have a handful of sworn deputies, some places, maybe just one or two, if it's really rural. So the size can vary quite a lot. And that, again, tends to be by population.

I mean, what's interesting about county sheriff's just looking at it broadly, and this is kind of taking the elected democratic part of it into consideration is that because sheriffs represent counties, you only have one elected sheriff, no matter how large your county is. So you might have, you know, millions of people in your county, you might have hundreds of people in your county, but you still only have one elected sheriff.

And like a lot of elected officials, county sheriffs have to be local. So I think one of the important things to think about why sheriffs offices are different from other law enforcement agencies is that an elected sheriff has to live in the county where they serve, so you're also kind of limited in scope. That's not true with other law enforcement agencies. Police chiefs can get imported from other cities, and you'll see, you know, Dallas will hire the police chief from Oakland or something like that, right?

Tyler McBrien: These are the so called contract cities, correct?

Jessica Pishko: Right. No, sheriffs also are in charge of the policing of what are often called contract cities. And those are just cities that don't set up their own police departments. And so they essentially pay a fee to the county sheriff to police their city. And it's really just a fee, like you pay per car and how many deputies are in the car.

So it's really like you're paying for, like it's set up like a, you know, those menus, like an a la carte menu where you pick, like, this is the kind of policing we want. And then they drive around, and here's the hours, and here's exactly what they'll do.

So that also generates some issues, right, because while sheriffs are elected on the county level because they're elected on the county level, that often means that suburban and rural voters have a bigger say in who their sheriffs are. And so contract cities, so for example, Los Angeles, you might have a contract city like Antelope Valley or Compton, that's getting policed by a sheriff’s office that's elected by, you know, people who live in Malibu or, you know, other places, right? So you're going to get a different style of policing than perhaps like what the people in the contract city want.

Tyler McBrien: I want to continue on this democracy line of questions because I think one thing your book does so well is sort of excavate these paradoxes that run through ideas of sheriffs, myths of sheriffs.

So on the one hand someone who may not know much at all about sheriffs can look at this democratic aspect that they are elected by the people and, you know, view it as a very good thing. They, if you're accountable to the people, people don't like what you're doing, you're out the next cycle. And even though there's no, often sheriffs don't report to another official, it seems like it may be a pretty good accountability structure, direct, direct democracy.

And sheriffs themselves, as, as you write about so well, play up this community aspect. They're closest to the people. They're accountable only to them. Can you problematize that a bit? Show why that doesn't quite bear out in, in most instances.

Jessica Pishko: Sure. So actually, to me, this was the puzzle that I started with. And, you know, to also put this in context of my thinking, I started working on this before Donald Trump was elected. And so I do think now we're at a stage where this idea of right wing populism, or the idea that like we're going through a populist moment. And it would not be a surprise, of course, that sheriffs are immensely popular with people in a populist moment. And, and this is largely what they represent.

But at the time, I was certainly thinking a lot about, well, if sheriffs are elected, why is it that they seem so anti-democratic right? And there's a handful of ways in which it works. I mean, one is simply that sheriffs are able to limit who can run. So it will not be a surprise to people to hear that the vast majority of sheriff elections are kind of one candidate elections. Sheriffs win elections over and over, so there tends to be a very low turnover of sheriffs as compared to appointed police chiefs.

And also, as I said, the fact that sheriffs are elected by county, county officials as a whole will tend to be more conservative than officials elected by an urban area. And that often tends to be because people in the more rural outskirts, right, so most counties are sort of like a county and you have an urban core and then sort of surrounding suburban areas.

What tends to happen is suburban residents or kind of ex urban residents are more interested in who the sheriff is. They might be more familiar with the sheriff. The sheriff might live in their community and they might be policed by the sheriff. So they pay more attention to sheriff elections. Whereas perhaps people in the urban center see sheriffs as jailers. And so maybe less, paying less attention to who exactly is their sheriff.

So in that way, right, there's sort of, issue with voting. And then of course you have all the attendant problems with voting, right? Voter suppression, the fact that in some places people with felony convictions can't vote. And so perhaps people who are the most impacted by sheriffs and mass incarceration are the ones who are prevented from voting. So you have all these attendant issues.

But the other thing I started to think a lot about was that like the electoral college, sheriffs really represent something more like land mass. And so when you start to think about sheriffs on a big scale, you have these 3,000 sheriffs, but only about 20 percent of sheriffs, let's say, represent most of the U.S. population.

So just and I'm being really rough here. So if you're like a rural urban expert don't yell at me. I'm like using the word rural really, really loosely. And I acknowledge like there's suburban and ex urban and we have a variety.

Tyler McBrien: There’s urban conglomerations, we're very specific in the show.

Jessica Pishko: Right. Right. So I want to be clear that like, I'm kind of being like really loose with my terminology. But you know, about, so we could say about 80 percent of the population lives in about 20 percent of the counties or so.

And so really about 20 percent of sheriff's are representing most of the people in the United States, which means on the flip side that 80 percent of elected sheriffs are representing by about 20 percent of the population. So a much smaller segment of the population.

Now the issue with that is, let's say you have someone like Donald Trump on stage with a whole lot of sheriffs. Well, that whole lot of sheriffs looks like, oh, well, you know, 95 sheriffs are standing behind Donald Trump. Well, those 95 sheriffs, you know, far from represent anything close to like 95 percent of the population. Right. They probably represent closer to like a third or 40 percent of the people.

And so that's something I started to think about a lot because sheriffs play a really important role in lobbying and especially in state politics. But increasingly over the time I had been working on my research, they started to play a bigger role in national politics. And that's something that's a little new. It was really Donald Trump who started to bring sheriffs around again into a kind of realignment, right? Like realignment of politics where local politics started to match national politics.

So you had Republican sheriffs saying they supported Donald Trump, which was just not a thing that was happening to be quite honest before 2016. Sheriffs largely, they just did not endorse presidential candidates. You might have Democrat sheriffs who had been Democrats for a very, very long time, and they just continued to run as Democrats. And so you just did not have this realignment.

And this is again, because sheriffs are locally elected. I think something like 80 percent of sheriffs went to high school in the county where they work. So like really local figures, people vote for their sheriff based on, do they know the guy? I mean, that is in most places how sheriffs get elected.

People were not voting for sheriffs based on like, does he support the policies of, Donald Trump, or of George Bush, or of Ronald Reagan. Like that was just not how people thought about this. Now, increasingly, that is how people think about it. And that is important. And so it has changed the office of sheriff.

In addition to the fact that a lot of these groups, like the groups behind Project 2025, other right-wing groups have really started to adopt sheriffs as kind of an ideal mode of policing. Again, as you pointed out, sheriff's feel democratic. They are elected, which makes them populist in that way.

And so when right wing groups adopt sheriffs saying, oh, sheriffs are a great mode of policing. They are elected, which is also what sheriffs say about themselves. It doesn't seem wrong. It seems good. Especially again, if these are groups that are saying something like, well, the ATF and the DEA are run by, you know, the deep state, elected officials, long term bureaucrats.

But your county sheriff is one of you. He's elected. He goes to your church. He shops at your grocery store, right? He's like a man of the people.

Tyler McBrien: I want to bring into the conversation, the constitutional sheriff's movement. And I wonder if we can start with, I think one of the best examples of this democracy paradox and this other paradox that the enforcers of the law are themselves acting often unlawfully with the example of January 6th, because something that we cover quite often here at Lawfare.

And so I just want to quickly read a one or two sentences from, from your book. You want readers to understand that the increasing public awareness of far-right movements must be considered in light of law enforcement, not in contrast to them. After January 6th, some pundits were confused. How could a group of people who claim to back the blue also kill and maim law enforcement officers?

And I suspect some of the answer, at least, is in interpretations of the law. And who are the true interpreters of the law, who are true citizens? What is the true Constitution? There's this super interesting, I think, religious, political, theological dimension to this whole thing. So with that huge wind up, what is the constitutional sheriff's movement and where did it come from?

Jessica Pishko: So, the constitutional sheriff's movement, I usually put kind of quotes around it, as that is what they call themselves. So, just to be clear, they have named themselves constitutional sheriffs. And they do it on purpose, again, because it's confusing, and because it sounds good, because who doesn't like the Constitution, right? Everybody likes the Constitution.

I will often call them in discourse, like, right wing sheriffs, or far right sheriffs, because that is, that is really what they are. That is not what they call themselves. But they are a group of sheriffs and so their belief, I'm going to frame it first as what they say they believe and then like how I actually think they fit into politics.

But they frame themselves as essentially representing sheriffs and the idea that the sheriff is, you know, quote, the highest law in the land. That the sheriff can decide whether how laws ought to be interpreted in the county. And that generally means something like, well, the sheriff is the chief law enforcer of the county, they are democratically elected. And so when people elect their sheriff, they're voting for a particular interpretation of laws.

And if you vote for a sheriff who believes in this interpretation of laws, you get what you vote for, right, so you're getting the sheriff. And you know, to add the dimension to it, indeed, constitutional sheriffs are not just should stand for the Constitution, but must. It is a duty to stand for the Constitution, to represent true constitutional values, right, in a kind of originalist way. Which if you're a lawyer looking at, like, Supreme Court decisions, this makes sense, right?

Their view of the Constitution is originalist. What did the Founding Fathers think? They're looking at only what they call the original Constitution, which is just the Constitution plus the first ten amendments, the Bill of Rights. Right, so they're not concerned with additional, you know, amendments. They're not worried about the 14th amendment or the 19th amendment.

Right, they're worried about what did the founding fathers say that the laws of this country ought to be and it's very, very literalist. Again, it is a lot more like originalism than I think people point out. Like I noticed right away, oh this is just originalism, just sheriffs doing originalism.

And in fact constitutional sheriffs actually sort of scorn lawyers, like one of their important tenets is that the law ought to be interpreted by sort of like the common man. They hate the idea that lawyers understand laws better than sheriffs. The sheriff is the stand in, for this sort of like regular person, regular dude really, because most of them are men. I mean, just to kind of add to that, like, most sheriffs are white men, about 92 percent are white men. So, like, it kind of blends into this very, like, white guy sort of thing.

And again the constitutional sheriffs will say we're open to all people. They're not like explicitly racist. They don't actually endorse explicit racism. They endorse something more like what the Patriot Movement does like right? We are looking at what we think the United States ought to be. Just happens to be that it generally ought to look a particular way.

Now I kind of quibble, like sometimes people say, oh, well then when you elect like a progressive sheriff who says, you know, I am not going to enforce, let's say like marijuana possession. I'm not going to arrest people for marijuana possession, my reformist sheriff might say. That's like a constitutional sheriff.

Now, where I quibble with that is, it's not. Like, those are not what the constitutional sheriffs think. Like, the constitutional sheriffs have an extremely right-wing view of the world. They do not support abortion rights. You could argue, well, isn't that, I mean, it's not in the Constitution. So they're very big on freedom, property rights, freedom, liberty. That's not, that doesn't count. They're not big on abortion rights.

They believe in enforcing immigration law. So they're actually anti-immigration, very nativist. That's very core to their belief. Immigration law is federal law, so why are they enforcing federal law? They have very, like, stern beliefs about the Second Amendment. So, very much like the current Supreme Court, they believe the Second Amendment should be, like, absolute. Everyone can own any gun they want. That's really important.

Things like religion are very important. Everyone should be able to be religious. Like the Supreme Court right now, they also think that the First Amendment means that you can practice religion in public spaces. They have quite a lot of feelings about land use, private property rights. This is like very strong in many of their beliefs, so they oppose things like the America with Disabilities Act, which they say, well, if you don't want to make your property welcoming, then why should you make your property welcoming?

They dislike environmentalists. That's another like sort of core belief. So they have all these beliefs that they hold. And they just like so happen to coincide with the far-right. So I say, well, that's, you know, basically what they're doing. I mean, really, and the root of the constitutional sheriff movement in its basis is really kind of more from this like libertarian view.

Now, I want to say a lot of people trace the constitutional sheriff movement to Posse Comitatus, a movement that was popularized in the 60s as a response to desegregation and other kind of mild, liberalization of laws, a change in demographics, heavily influenced by not just desegregation of the South, but also like the farm crisis radicalized a lot of people in the Midwest. This is where you get the sort of anti-Semitic strain of Posse Comitatus.

And the idea behind Posse Comitatus was that Christian white men with foreign posses, and they wore little stars. And they said, okay, we are representing the original law, and the only law enforcement officer we like is the sheriff.

Now, the thing about Posse Comitatus is most sheriffs do not like posse comitatus. They were seen as like an extremist group. They were more like how I think people see militias today. They were basically militias. They, you ran around with guns. They kind of showed up at various places, like armed, caused kind of like armed rabble and law enforcement did not like them.

They were seen as, you know, not welcome. Sheriffs weren't into it, and after a time they were also very violent. And this sort of all began to coincide with like the rise in the Aryan Nations and other deeply white supremacist groups. And they sort of all merged together in this way, and you know, and then eventually a lot of the, started to change. And people died and got, you know, incarcerated. The Aryan Nations went bankrupt.

And so some of these movements like started to alter. And the constitutional sheriff movement came from those ideas, although I will say Richard Mack himself will consistently say he never heard of Posse Comitatus. I don't know if that's like totally, like, I think he's being a little disingenuous, but I do agree.

Tyler McBrien: And can you just say briefly who Richard Mack is for, for listeners who aren't familiar?

Jessica Pishko: Richard Mack is a ex sheriff from Arizona who is the founder of the Constitutional Sheriffs and Peace Officers Association, or the CSPOA, which is the largest constitutional sheriff group in the United States. You know, largest being a flexible number. I want to say like largest being a flexible number.

And he started his group, you know, in the 1990s, kind of as Posse Comitatus was tailing off, right? A bunch of militia movements started to rise. This was the nineties, militia movements, 1995 was the Oklahoma City bombing, which is kind of the what, however you want it, the nadir of the militia movement, right? This was like, sort of resulted from this rise.

And Mack's idea was, well, if we take these ideas, these kind of libertarian, constitutional, patriot ideas and say, oh, well, it's actually the sheriffs who will do it. That's actually a good way to contain the movement. It feels more legitimate. Sheriffs are legitimate law enforcement officers, but they're also elected. So we could get a populist movement behind electing these sheriffs who believe these certain things.

Now, his movement did not take off very well right away. To be fair, like his movement didn't take off. He had like several iterations. They didn't work. He ran for office multiple times after he was ousted as sheriff. He didn't win. I mean, he was really just kind of flopping around up until he met Stewart Rhodes around 2008.

And Stewart Rhodes, who founded the Oath Keepers, picked up Richard Mack and thought that Mack's constitutional sheriff movement might be useful. And so they kind of joined forces along with a few other what people sometimes call patriot groups.

And they were able to capitalize on the Tea Party movement, which is another sort of libertarian movement, right? Very anti establishment, kind of deeply rooted in this similar rural resentment, original constitutionalism, right? And they capitalized on this and became more popular. And in fact, Richard Mack and Stewart Rhodes kind of did a road show together. They would like travel around and do meetings and little rallies.

Stewart Rhodes liked to call them musters because that's like, what they did in the olden days of the revolution was like a muster of dudes with their muskets. But that was, it's kind of interesting to me because that was really how their campaign worked, right?

Like, and I saw it myself, you know, I went to some rallies, obviously this was, it was later. But like one of the ways that Richard Mack and the constitutional sheriff movement get followers is they go to rural places and they show up. And they have a, like a tent revival, right? There's like food and snacks and people bring their kids and it's like a little picnic and it is indeed like the biggest show in town. Like it is the thing to do. Everybody comes with their lawn chairs and hang out.

And I could understand how that appealed to people in the sense that it's people who feel really alienated. Not just alienated from D.C., but like alienated from the state capital. Like rural Nevada is, you know, you're four or five hours from Reno. They feel like Reno doesn't care about them at all.

So Richard Mack comes with his bus and then they hang out and people are like, oh yeah, like these are the people who care about us. Like they represent our values. That does mean something to people, that sort of like that physical, like we are hanging out together in this space.

Tyler McBrien: You started to mention a bit about the number of sheriffs who would consider themselves in Mack’s group, for example. So I want to get a sense of just how mainstream versus fringe, say, the far right, sheriff movement is.

And I also want to say that I was really struck by your book by how good the timing was. I mean, you, you said that you actually started the book before the first Trump administration. And I had the sense that a lot of these more fringe ideas, if I'm being fair, fully gravitated into much of the mainstream or almost exclusively the mainstream Republican Party.

Could you speak a bit about your sense of where these ideas and these groups stand in the current political landscape? And how it was to see them shift from the periphery to the center?

Jessica Pishko: Yeah, I actually think it's really important because, okay. So right now I actually think the constitutional sheriff movement and Richard Mack are well within like the center of the GOP, like that's just, it's just true. Like he is in a way scrambling to catch up with where the GOP is.

There was just a New York Times article, which talked about I think militias and Trump. And it mentioned Richard Mack, like, offering his help to the Trump administration. And it was really framed as, like, this is one of the groups that supports Trump. And I, I actually do think it's kind of true, like, it's just a shift in where the GOP is and an embrace of, of some of these ideas and values.

To be honest, I actually think Richard Mack is ready to catch up, because he is, I mean, he's, to be fair, he is older. He's still rooted in, like, 90s militia movements. I mean, in the 90s, for example, Mack said, legalize marijuana. And the liberal press was like, oh my god, this crazy sheriff wants to legalize marijuana. And that's now, like, a regular, I mean, honestly, it's kind of like one of the very few bipartisan positions is legalized marijuana. So that's like really common now.

So it's like a bit, it's, it's a little bit funny. Now, the scope of the CSPOA in my view, it is not that large. It's like 10 percent of sheriffs, maybe about 300. I do think there's like two important things. So one is that the ideas and the group are growing.

It is true that Richard Mack is an ideologue. He does not care about having members. Like he really, like he really believes it in his core. I mean, there is something a little like flim flam about some of this stuff. Right. He, he's, he's got a lot of grift going on, but he does believe like to his core that the constitutional sheriff movement is a good thing.

And he will readily embrace Democrats, Republicans, any, sheriffs that don't know him. Sheriff's that never heard of him. He'll be like, this is a great constitutional sheriff. He's like a all, you know, anyone and anybody who does anything, he will embrace. But his core followers remain kind of small.

But at the same time, more sheriffs seem to identify as constitutional sheriffs than I had seen previously. So one thing that was very rare when I started the book was to have any sheriff running saying they were a constitutional sheriff. Kind of outside of someone like Joe Arpaio, that was just not a thing. Now I actually think it's kind of not uncommon to have some sheriffs running saying, I'm running as a constitutional sheriff. Now that said, their definition of constitutional sheriff can vary, because some sheriffs are like, we all follow the Constitution, which is the true to this broad way.

But, and the, so the second thing I think is important is that the effect of the constitutional sheriff movement has like a huge impact on how sheriffs see their job overall. I mean, sheriffs are already, they're rather conservative. The vast majority of them support Trump, is just true. And again, pointing to this sort of like most sheriffs are in counties that support Trump.

Like most counties supported Trump. I head it was like 85%, I think it actually went up. So a lot of counties, most of the people voted for Trump. I mean, setting aside things like who voted and, right. This is like, again, speaking very roughly about how people vote. But that means there's a large number of sheriffs out there who see not just their constituents supporting Trump, but they themselves see Trump as like a supporter.

And one of the arguments I make in the book is that Trump has really unified and like uplifted this right wing sheriff movement because he has supported a lot of the things they believe. And we see that kind of echoing in my view, all across a lot of the way sheriffs behave, a lot of their lobbying. You know, sheriffs in every state will say, well, you can't regulate me because I'm the highest law on the land. And I'm elected so you can't tell me what to do.

That's like, almost every sheriff says that, right? A bipartisan sheriff agreement is something like that. And that's a constitutional sheriff belief. Like there is no law that says you can't regulate sheriffs, for the lawyers. Like, there's no law that says that, it's just not law. But it's popular. People believe it.

Tyler McBrien: What else do you attribute this coming together of the far-right and sheriffs? Or rather, what do you attribute the appeal of the sheriff in, in the far right imagination or even now the mainstream Republican imagination? There's obviously an aesthetic appeal. There's the the myth of the white hatted sort of dashing cowboy, John Wayne type sheriff figure. But what else? Yeah, why do you think it's the sheriff is so appealing to the right?

Jessica Pishko: I think there's a handful of things. I actually think the sort of TV and media aspect of the sheriff is very appealing. I mean like Claremont Institute has embraced sheriffs. They say basically sheriffs look cool, like they have badges and guns. You don't have to wear a uniform.

This is, some do, although I want to say they can wear any uniform they want. They get to design their own uniforms. So all the stars like don't actually mean anything. I learned that, but like you could design your uniform. So some wear uniforms, but you don't have to. It's one of the few professions like you could wear a cowboy hat.

Interestingly, like a lot of urban police don't allow it. They have like strict uniform requirements and gun, right? You have to have a regulation gun and a regulation this and a belt and whatever. The sheriff, himself, can do whatever he wants, dress however you want, wear whatever you want, carry whatever gun you want, you know, wear whatever hat you want. And so that like in and of itself kind of is, right, it's like the guy who could just, he looks cool. I mean, there's no question about it. Uniformed police, they don't, they look like the deep state, I think to the far right. And sheriffs do not.

There's also this aspect of like masculinity and whiteness. Like most of them are white. Most of them are men. That's without question. Like a big part of their appeal is they look like a sort of imagined ideal of what America ought to look like and what American law enforcement ought to look like.

And I also think there's something about, again, their attitude, right? So if you look at what the right is saying right now, they're saying, you know, we don't want federal law enforcement. We don't want to spend money. They're corrupt. They're career bureaucrats. Sheriffs are sort of the opposite. They're elected. They're populist.

And a lot of them, or the idea of sheriffs, like if you think of TV sheriffs, is that they don't like follow rules. So, you know, when you watch a show about either a good sheriff or a bad sheriff, right. There's, I think there's plenty of shows about good sheriffs too. They're not really into rules. Like they don't fill out the paperwork. They're like, oh, paperwork's for chumps. They don't, you know, go get a warrant. It takes too much time to go get a warrant. Like they go get their gun and then they run out and get the bad guy. And then they sort of deal with all the stuff later.

And they're in these media and shows like they're admired, is they you know quote like get stuff done without dealing with like paperwork so annoying. And that I think is actually like the ultimate appeal is like you can just like you are real law enforcement. I mean like to be clear, these are people with like the power to jail and arrest and shoot and qualified immunity applies, right? Like they have all the powers that like police have. And yet they sort of hold themselves as like, oh, I don't want to deal with like sticky details. Let's just go get justice.

And, you know, I will add as an aside, like what that justice looks like is there is evidence to suggest that like sheriffs or their deputies are disproportionately more violent than urban police. I don't know if it's like, I mean there's things varying from inconsistent training or is it just attitude, but there is really, I mean it is showing itself out to be, right, that sheriffs and their deputies are actually more dangerous.

Tyler McBrien: As we near the end here, I want to pick up on what you were talking about of the role of sheriffs during the first Trump administration. You write in the book about how Trump back in 2016 boosted sheriffs politically, financially, I think you even use the word spiritually. Could you just dig into some of those details of how the Trump administration boosted sheriffs?

And then also, I'm very curious, you published the book, I believe, before we knew the results of the presidential election. And you've been writing a bit about the likely role of sheriffs in the second Trump administration. So, yeah, I'm curious, again, how Trump and sheriffs interacted in the first time around, and then how you expect sheriffs to play a role in, in the second Trump administration.

Jessica Pishko: Sure. I mean, when you write a book, it's always a bit funny because you have to predict the future. So I had this whole chapter on Trump, and then it wasn't clear to me that Trump would be relevant. It's like, you know, it was like 2020. I was like, oh, I don't know if Trump will be relevant in 2024.

So I actually had written and then scrapped a chapter about like Ron DeSantis. And then I was like, oh no, Trump is relevant. He's, he's probably the nominee. Let's put the Trump back in and we can scrap Ron DeSantis. So it was always a funny like act when you write a book, cause you do, you're always like projecting into the future.

I mean, what struck me about Trump in 2016, right, which I thought was important, was a few things. So one was that he met with a lot of sheriffs, right? So he met with sheriffs, not just like in sheriff meetings and associations, but like in the White House, like something over a dozen times.

A lot of those times, to add, were with Tom Homan. To be clear, Tom Homan was actually like very, very relevant in a lot of those conversations. And Tom Homan himself is a big sheriff supporter. So like this is all wrapped up with what we will anticipate, right, for the next Trump administration.

And that was really rare. I don't know that people realize how rare it is, but no one had met with sheriffs aside from Ronald Reagan. That was it. I mean, maybe some, Maybe some presidents in the 1800s that like I that, you know, we couldn't find, but like no modern president had really met with sheriffs.

Tyler McBrien: Was this because Reagan played a sheriff?

Jessica Pishko: Well, yeah, he did. So he, that was his thing. So Reagan, you know, in every speech Reagan would be like, well, I played this character so like, I absolutely understand how you feel. So he, yes. So he's like, I played the sheriff. So I get sheriff. Yes. So it was his, his, his, his vibe of playing a character.

But Trump seems to really like sheriffs and he continued to talk about how he really likes sheriffs. He met with them, he talks about them, you know, some of that is, right, Trump's like addiction to things that feel like reality tv ready, like he likes anyone who looks like they're from central casting.

So he's very fond of like sheriffs who look like sheriffs and that really appeals to him, right? The tough guy. And there's sort of the tough guy stuff, right? The sheriff is kind of the legitimate law enforcement version of like Vince McMahon. So it's like, you got Vince McMahon on one end and like the sheriff on the other. They're kind of like the same type of guy, like a strong man style guy.

Then the second thing, honestly, was that sheriffs really supported Trump, that they flocked to him as like representative of their values, as like understanding what they want and understanding where they were coming from. And of course, I mean, many, many people have commented on this, right, like Trump is not from a rural area. He has never, he probably had not met a sheriff in his life. He's from New York city. He's a businessman.

There's like nothing really about Trump that would make him like at all amenable to like what sheriffs do or that in any way helps him understand the day to day job of a sheriff. But yeah, they flock to him. And I would say now the one thing I see that in some ways, I think is also equally urgent is that this drift towards Trump is not only sheriff's now, but like all law enforcement.

I mean, I think we really saw just like law enforcement as a group move towards Trump. I'm very curious if anyone will ever figure out, like, could we, could we determine, did law enforcement vote for Trump in a kind of overwhelming way? Because I do think rank and file police, like very much support Trump as evidenced by endorsements from like the FOP and places like that.

And, you know, in the next Trump administration, and this was true in Trump one, that one of Trump's goals that sheriffs are very attached to is the idea of mass deportation. This is something that sheriffs very much like. They endorse it. They see it as like very important to they're, you know, reason to be. I think a few things are interesting about that.

One is sort of that Trump himself has been very, very unclear about exactly what mass deportation will look like. So I just want to set that like out. He's really unclear about it. Sheriffs say they support it, but it's like very unclear exactly what they're supporting. And this is true with like all of Trump's policies about policing in general. Right. He said he supports more policing.

I want to say that Trump, during his first term, like, defunded police. You could, I mean, he took money away from police. And his sort of idea to, like, defund the administrative state would in reality take money away from local law enforcement. But it's obvious that that's not what local law enforcement care about. They don't seem to care about the money.

They seem to care about, I think, the permission structure that Trump gives for them to kind of do, I say, sort of do what they want. Like, and most of that, honestly, is to be more violent. The idea that you can be extra violent and nobody will get mad at you.

I mean, then you have sort of the things that Trump has done, like pardon Joe Arpaio, which I think in retrospect says quite a lot about what Trump values. Like, why would you pardon Joe Arpaio, a person who was voted out of office? I mean, he lost. He was, of course, indicted for, I mean, right, he, he was indicted for, I mean, basically also being bad at his job.

I mean, he wasn't just racially profiling. He was bad at his job. He didn't run his jail well. He was very, very bad at solving crime, right? He had like untold numbers of unsolved crimes. So, like, I would say, oh, well, this is the guy voted out because he was bad at his job. And was prosecuted for racial profiling.

But Trump, right not only I think pardoned him, but also like uses him as someone that he uplifts is like ideal law enforcement, right? So it's this idea that the job of law enforcement is to be really mean, but ineffective. I would, I would personally say he does not seem to be worried about like solving serious crimes, just like being mean and violent.

And so I do think that Trump sees and has said, and Tom Homan has repeatedly said that he does see sheriffs as like very key to mass deportation. I do want to say, and I talk about quite a bit in the book, that sheriffs do play a role in deportation. They play actually a very important role as jailers in deportation. Because that is where most people are sent to ICE for deportation proceedings, right?

The main way people go into any deportation proceeding is because they have been arrested and charged with a crime. And once you're booked into jail, ICE and everybody else knows you're there. That's like the one thing, the one place where you know where people are is jail. Everyone knows you're there. They have your fingerprints. They have all your aliases and your names, et cetera, et cetera cause that's how our systems work now.

And so ICE knows who they are. They can track them. They can find them, which is very important because you're in a jail, you're not going anywhere. And in theory you have been arrested for a crime, in theory, right? Not found guilty, but you've been charged with a crime. And that is the current procedure, right? That, that, that ICE takes people who've been charged with crimes and that puts them into deportation proceedings.

And I think if you look at the hysteria that created the mass deportation impetus. It has been about people who have allegedly committed crimes. So I do see that that is something that a lot of, a lot of sheriffs believe in. But also a lot of, I mean, we have seen that governors, even Democrat governors, even Democrat mayors, Democrat sheriffs, they have all kind of lined up behind this idea that the reason why we need to do immigration enforcement is because of crime.

Like the idea that there's a relationship between the two. Your listeners probably know, but I want to say to be clear, like there is no relationship between immigration status and crime. That's just not true. You know, we could look at all sorts of data and stats.

But I think like what we do have is a great deal of propaganda that is relating immigration and crime. Right. That's, and there are groups who spend a lot of money and time creating this idea that, that the two are connected.

Tyler McBrien: I want to end with, I think, one of the most underreported, maybe, or, or undercovered aspects of your book that I, I was learning about, which is sheriff's role in, in jailing and, and especially jail deaths. So could you speak a bit about that?

Jessica Pishko: Jails have become one of the most dangerous places in the country. So there's no federal agency that tracks jail deaths. And jails are, again, county facilities where most people are being held pre-trial. And most of them are run by elected sheriffs. Nobody tracks how many people die in these places, and very few states even track this information.

And because they're run by sheriffs, a lot of sheriffs don't feel obligated to keep track of that information. And so, what little we know is that jail deaths are going up. And even though prison, most prison conditions, and I'm going to speak really broadly. There's a lot of attention to prison conditions. There's a lot less attention to jail conditions.

But I do think if we're thinking about sheriffs and the jobs they do, the fact that sheriffs have killed so many people in their jails is an important indication as to the fact that they are typically not doing their jobs very well.

Tyler McBrien: The book is “The Highest Law in the Land: How the Unchecked Power of Sheriffs Threatens Democracy.” I at least have found it essential reading heading into the next Trump administration. And to be honest, essential reading to reflect on the past, let's say since 1776 or earlier. Jessica, I want to thank you so much for taking the time to talk about it with me today.

Jessica Pishko: Oh, thank you so much.

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