Los Angeles-based litigator selected as Arpaio special prosecutor

Boies Schiller Flexner LLP partner Christopher G. Caldwell will argue to uphold a criminal contempt conviction against former Maricopa County Sheriff Joe Arpaio, the 9th U.S. Circuit Court of Appeals has announced.

Caldwell's selection is the latest development in the court's decision to appoint a special prosecutor in Arpaio's contempt case, a move that has split members of the 9th Circuit along ideological lines.

In an order released Monday, a three-judge panel of the court clarified the scope of the Los Angeles-based attorney's role in the litigation, saying it would be restricted. United States v. Arpaio, 17-10448 (9th Cir. filed Aug. 19, 2016) [order attached below].

"The special prosecutor will be limited to the functions a government attorney would have performed in connection with Arpaio's appeal in this court had the government been willing to perform those functions," the order said.

U.S. Justice Department attorneys told the 9th Circuit they would not defend the criminal contempt of court conviction they secured against the former law enforcement officer after President Donald Trump pardoned Arpaio last year.

Previously, a federal court in Arizona found Arpaio guilty of criminal contempt in 2017 for failing to comply with a federal court order that he end racial profiling practices. U.S. District Judge Susan R. Bolton declined a request on his part to vacate the conviction in light of the pardon, ruling the presidential action pertained only to sentencing and entry of judgment.

The 9th Circuit announced it would appoint a special prosecutor to defend the decision in April after Justice Department lawyers declined to do so.

That decision has been controversial. Judge Richard C. Tallman, a conservative, dissented from the initial decision and shortly thereafter a judge on the 9th Circuit requested en banc review of the order.

Last week, the court declined to reconsider the decision. Writing for seven of the court's more liberal jurists, Judge William A. Fletcher said the court was acting within the bounds of a federal rule of criminal procedure that allows courts to appoint special prosecutors in limited circumstances.

Judge Consuelo María Callahan, joined by four of her more conservative colleagues, dissented, saying the court should have simply directed friends of the court to brief and argue the issues. She suggested doing otherwise was an unconscionable encroachment on executive authority.

On Monday, Tallman wrote a special concurrence reiterating objections to the special prosecutor appointment, expressing regret that he must concur with Caldwell's selection.

How the court came to select Caldwell, who did not respond to a request for comment by press time Tuesday, as a special prosecutor is not entirely clear. The Monday order announcing his appointment did not address the issue.

And Jack D. Wilenchik, a partner at Wilenchik & Bartness in Phoenix who represents Arpaio, said he was not aware of the selection process. Wilenchik said in a phone interview Tuesday he was not aware of who Caldwell was before the court announced its selection.

Arpaio will continue to fight the decision to appoint a prosecutor by petitioning the U.S. Supreme Court for a writ of mandamus in the coming weeks, Wilenchik added.

"The court doesn't have the power to replace the prosecutor just because it doesn't agree with the prosecution's decision," he told the Daily Journal last week.

Protect Democracy Project Inc., a self-described nonpartisan advocacy group and amicus in the lawsuit arguing to uphold the contempt conviction, expressed support of Caldwell's selection.

"The Court of Appeals has made the right move in appointing an experienced and qualified attorney to step in for the Justice Department in handling this appeal," the organization's legal director, Justin Florence, said in a statement Tuesday. "Now the court has an opportunity to ensure that the president doesn't use abusive pardons to interfere with the ability of the judiciary to protect constitutional rights."

Though Caldwell has been in private practice for decades, he spent an early part of his career as a federal prosecutor. According to information on his firm's website, Caldwell spent three years as a trial attorney with the Justice Department's public integrity section in the mid-1980s, credentials that might have helped his selection.