887 F.3d 979
9th Cir.2018Background
- Joseph Arpaio was convicted of criminal contempt in July 2017; President Trump pardoned him on August 25, 2017.
- Arpaio moved in district court both to dismiss with prejudice (granted Oct. 4, 2017) and separately to vacate the verdict and related records (denied Oct. 19, 2017).
- No timely appeal was filed from the Oct. 4 dismissal; a timely appeal was filed from the Oct. 19 denial of vacatur.
- The United States informed the Ninth Circuit it would not defend the district court’s Oct. 19 vacatur denial and instead would argue vacatur should have been granted.
- A motions panel considered whether to appoint a special prosecutor/amicus to defend the district court’s vacatur decision on appeal and ordered appointment of special counsel.
- Judge Tallman dissented, arguing Rule 42(a)(2) is inapplicable, the Government had not declined to prosecute, the request was a vehicle to relitigate the pardon, and appointment at this late stage is inappropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court of appeals may appoint a private special prosecutor to defend a district court’s contempt-related vacatur order when the DOJ declines to defend it on appeal | The Government (plaintiff-appellee) informed the court it will not defend the vacatur denial; appointment is necessary so the merits panel receives full briefing | Arpaio (defendant-appellant) and dissent argue Rule 42(a)(2) is inapplicable here, DOJ has not declined to prosecute, and appointment would be improper and untimely | The motions panel held it may appoint special counsel: authority exists under Fed. R. Crim. P. 42(a)(2) and under the court’s inherent power to appoint counsel when the Government abandons a prior position on appeal |
Key Cases Cited
- Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) (courts have inherent authority to appoint prosecutors to vindicate judicial authority)
- United States v. Providence Journal Co., 485 U.S. 693 (1988) (Supreme Court may require Solicitor General approval for special prosecutors in the Court; Court can appoint amicus to defend lower-court judgment)
- Hollingsworth v. Perry, 570 U.S. 693 (2013) (discussing Rule 42(a)(2) as authorizing appointment of private counsel to prosecute contempt)
- Ex parte Grossman, 267 U.S. 87 (1925) (Presidential pardon power includes power to pardon criminal contempt)
- United States v. Cutler, 58 F.3d 825 (2d Cir. 1995) (accepting special prosecutor’s briefing and argument on appeal)