Solicitor General considering appeal of special prosecutor appointment for Arpaio case

The U.S. Justice Department is considering a request for U.S. Supreme Court review of the appointment of a special prosecutor charged with defending former Maricopa County Sheriff Joe Arpaio's contempt conviction on appeal.

Government attorneys told the 9th U.S. Circuit Court of Appeals last year they would not defend U.S. District Judge Susan R. Bolton's decision not to vacate the former Arizona law enforcement official's conviction for failing to end racial profiling practices.

President Donald Trump issued a pardon of Arpaio shortly after the conviction was secured, but Bolton reasoned the action pertained only to sentencing and entry of judgment.

The Justice Department did not immediately respond to a 9th Circuit order appointing a special prosecutor, a development that split the court along ideological lines, but did file a brief arguing the appointment was not authorized by law when the court announced it would take a vote on whether to consider the decision as an en banc court.

The en banc call vote failed in mid-October, but two weeks later, Justice Department lawyers requested a stay in the briefing schedule for the appeal, announcing internal plans to consider a certiorari petition.

Whether the 9th Circuit has the authority to appoint a special prosecutor is a question that has divided the court, James I. Pearce, an attorney in the Justice Department's criminal division, noted in the Oct. 22 motion.

"If, as the government argued and members of this court have concluded, the court lacks the authority to appoint a special prosecutor here, then the appointed special prosecutor should not be permitted to begin litigating in this case," Pearce wrote.

The 9th Circuit granted the motion to stay briefing later that week, giving the U.S. solicitor general 90 days to decide whether it would file a petition for certiorari. United States v. Arpaio, 17-10448 (9th Cir. filed Aug. 19, 2016).

Christopher G. Caldwell, a partner at Boies Schiller Flexner LLP who has been selected by the court to fill the role, did not respond to a request for comment by press time. According to the government's motion, Caldwell took no position on the Justice Department's request.

U.S. prosecutors said in their en banc filing in July that the appointment of an amicus party charged with briefing just the legal questions presented in the appeal would be appropriate.

"The order's appointment of a 'special prosecutor,' who might rely on that designation to assert broader powers -- such as the power to challenge the validity of the pardon -- gives rise to grave separation-of-powers concerns that warrant clarification or correction by the motions panel or the en banc court," Pearce wrote in the brief.

Judges on the 9th Circuit who appointed the special prosecutor under Federal Rule of Criminal Procedure 42, which allows a court to appoint an attorney to prosecute a contempt conviction, said in the order that selecting Caldwell would not be without bounds.

"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.