The Ninth Circuit on Wednesday declined to review en banc an earlier decision to appoint a special prosecutor to defend the ruling of a lower court which refused to vacate the record of former Maricopa County Sheriff Joe Arpaio after President Donald Trump pardoned him last year.

“Ordinary criminal prosecutions are, of course, exercises of the executive power,” wrote Circuit Judge William Fletcher, joined by five colleagues concurring in the denial of rehearing en banc. “Prosecutions for criminal contempt of court are different. Such prosecutions are vindications of the judicial power, and the use of private attorneys as special prosecutors is part of the judicial function,” he wrote.