Arpaio asks justices to intervene in fight over special prosecutor appointed in his case

Attorneys representing former Maricopa County Sheriff Joe Arpaio asked the nation’s highest court Wednesday to strike down the appointment of a special prosecutor in the former lawman’s criminal contempt case, the latest development in a unique legal battle testing the scope of presidential pardon power.

In a mandamus petition filed with the U.S. Supreme Court, Arpaio’s legal team said the 9th U.S. Circuit Court of Appeals’ 2018 decision to name a temporary federal prosecutor in their client’s case was unconstitutional. They cited the high level of infighting among 9th Circuit judges over the appointment as evidence that the justices should take the case.

Phoenix-based U.S. District Judge Susan R. Bolton ruled in 2017 that a pardon President Donald J. Trump issued to Arpaio after he was convicted of failing to comply with a court order requiring him to end racially-motivated police practices allowed the ex-sheriff to avoid jail time but did not have the power to wipe away his conviction.

The 9th Circuit’s appointment of a prosecutor came shortly after Arpaio appealed Bolton’s ruling and U.S. Department of Justice lawyers said they would represent the views of the government, but wouldn’t defend Bolton’s decision.

Arpaio’s lawyers said in the Wednesday petition that the appointment of the prosecutor was an unconstitutional violation of the separation of powers.

“The lower court has no power to replace the Department of Justice as prosecutors for the United States in a criminal case — including, if not particularly, in a prosecution for contempt of court,” Arpaio’s lawyers wrote.

9th Circuit Judges A. Wallace Tashima and William A. Fletcher, over the objections of their colleague, Richard C. Tallman, said a special prosecutor was required under a federal rule of civil procedure governing contempt convictions. It says a federal court “must appoint another attorney to prosecute” if the government declines such a request.

The decision was controversial. A judge on the 9th Circuit called for an en banc vote, which failed, but drew a dissent from five of the court’s conservative members.

Judge Consuelo Callahan, joined by four of her colleagues, wrote in October, “The extraordinary act of appointing a special prosecutor not only violates the separation of powers, but is also sloppy, creates bad law, and invites reversal by the Supreme Court.”

Arpaio has conceded that the appointment of an amicus party charged with briefing the case would be an acceptable alternative to a temporary prosecutor. His objection isn’t just over nomenclature, though.

A federal prosecutor, unlike an appointed amicus counsel, has the power to conduct proceedings before grand juries and make warrant and subpoena orders, Arpaio’s lawyers say.

But the 9th Circuit in its order said the special prosecutor would be “limited to the functions a government attorney would have performed in connection with Arpaio’s appeal,” which wouldn’t typically involve those actions.

Christopher G. Caldwell, a Los Angeles-based Boies Schiller Flexner LLP partner, was selected in October to fill the role of special prosecutor for Arpaio’s case. The court did not reveal how it came to settle on Caldwell, who once clerked for Tashima, according to his firm biography.

A former prosecutor in the Justice Department’s public integrity section, Caldwell did not respond to a request for comment by press time Wednesday.

Jack D. Wilenchick, a partner at Wilenchick & Bartness PC who represents Arpaio, told the Daily Journal in a phone interview Wednesday he hoped the justices will issue a summary reversal, saying the legal issues presented were “clean and clear cut.”

The U.S. Solicitor General’s Office’s told the 9th Circuit last year it was considering bringing an appeal in the case, but announced in early January that it would not.

“This is our appeal, our fight,” Wilenchick said when asked about the development, adding that it dispels any notion the Justice Department is helping his client.