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.
Wednesday’s ruling leaves in place an April ruling from a divided Ninth Circuit motions panel which found that the court had the authority to appoint a special prosecutor under Federal Rule of Criminal Procedure 42.
In dissent from Wednesday’s ruling, Ninth Circuit Judge Consuelo Callahan wrote that the majority’s decision was “constitutionally infirm.”
“The majority’s we-see-no-reason-why-not approach does not justify its admittedly unprecedented—and unauthorized—intrusion of executive power,” wrote Callahan, joined in dissent by Judges Jay Bybee, Carlos Bea, and Sandra Ikuta.
Callahan wrote that the need for the judiciary’s “limited quasi-executive power” in criminal contempt proceedings is extinguished once such proceedings are initiated.
“The executive branch’s role is to prosecute. Our role is to adjudicate,” Callahan wrote. “When we close our eyes to the constitutional limits of our power, we are bound to veer out of our lane, and there’s no telling what else we might do simply because ‘we-see-no-reason-why’ not,” she continued. Callahan concluded that the court should have stuck with the “tried and true solution” of appointing amicus curiae counsel to the lower court’s ruling.
John “Jack” Wilenchik, one of Arpaio’s lawyers at Wilenchik & Bartness in Phoenix, said that he agreed with the dissent.
“The Court cannot replace a prosecutor simply because it disagrees with the prosecutor’s choices in litigation,” Wilenchik said in an email Wednesday morning. “Allowing the Court to do so would effectively render our prosecutors and the executive branch subservient to the Court because they may be replaced at any time if the Court disagrees with them, and it would convert our system from an adversarial one into a ‘Napoleonic’/civil system in which judges are called upon to prosecute and decide crimes and control the prosecution.”
Wilenchik said, given split within the Ninth Circuit on the issue, Arpaio’s team is considering petitioning for Supreme Court review.
Read Wednesday’s order: