U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Special Prosecutor Will Oppose Arpaio in Pardon Case

President Trump pardoned Joe Arpaio last year, but his case is far from over.

Although Arpaio was pardoned for contempt of court, he is appealing because the trial judge refused to vacate the conviction. Judge Susan Bolton said the pardon spared him the punishment, but not the record.

In United States of America v. Arpaio, a divided U.S. Ninth Circuit Court of Appeals has appointed a special prosecutor to oppose the former sheriff. The majority and dissenting opinions seem to agree on one thing, however: the government is broken.

Illegal Immigration

Arpaio was convicted of criminal contempt because he refused a court order to stop detaining people based on suspicion they were illegal immigrants. Before he could be sentenced, the president pardoned him.

But when the judge declined to vacate the taint, Arpaio appealed and the government said he was right. That set up the issue in the Ninth Circuit.

The majority said it had authority to appoint a special prosecutor under Federal Rules of Criminal Procedure Rule 42, which provides for special prosecutors when the government declines to prosecute criminal contempt.

In dissent, Judge Richard Tallman said the majority was making an "unwise" decision. He especially called out the "friends of the court," who "seemingly want a special prosecutor appointed just to take another stab at attacking the pardon."

"Surreptitious" Attack

Tallman referenced Erwin Chemerinsky, who filed with others as amici in the case. The judge noted the amici spent three pages arguing about vacatur and nine pages on the validity of the pardon.

"[W]e have already ruled that amici missed the deadline for arguing the merits of such an appeal," Tallman said. "It's time amici let go of that issue."

He called the appointment of a special prosecutor a "surreptitious," "untimely," and "undoubtedly political" attack on the president's power to pardon.

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