President Donald Trump pardoned Joe Arpaio as he was awaiting sentencing, a few weeks after the verdict that the longtime immigration hard-liner defied a court order in a suit involving profiling of Latinos. | Matt York, File/AP Photo Justice Department won’t take Arpaio fight to SCOTUS

The Justice Department has decided not to ask the Supreme Court to block the appointment of a special prosecutor to fight former Arizona Sheriff Joe Arpaio’s effort to erase the guilty verdict a judge returned against him on contempt of court charges last year.

However, a lawyer for Arpaio said Wednesday night that the ex-sheriff’s legal team is planning a new entreaty of its own to the high court, despite the Trump administration’s decision not to pursue the issue of judges’ authority to name special counsels without an explicit blessing from Congress.


President Donald Trump pardoned Arpaio as he was awaiting sentencing, a few weeks after the verdict that the longtime immigration hard-liner defied a court order in a suit involving profiling of Latinos.

The pardon appears to have wiped out any chance the 86-year-old will go to prison or face a fine in connection with the contempt charge, but Arpaio’s lawyers have persisted in a demand that the guilty verdict also be formally set aside.

U.S. District Court Judge Susan Bolton rebuffed that request, holding that the pardon excused Arpaio only from the consequences of his defiance of a court order in a case over racial profiling of Latinos, but did not amount to a basis for wiping out all the rulings in the contempt fight, such as the ex-sheriff’s conviction.

The decision announced Wednesday not to take the contempt case to the Supreme Court, at least for now, stems from the Justice Department’s refusal to defend Bolton’s decision when Arpaio appealed. Over the government’s objections, a panel of the 9th Circuit Court of Appeals ruled, 2-1, in April to appoint a special prosecutor to argue that Bolton’s decision was correct.

The move to authorize a special prosecutor was opposed by several 9th Circuit judges. Judge Richard Tallman dissented from the panel’s decision. Then, an unnamed 9th Circuit judge called for the issue to be reconsidered by a larger, 11-judge en banc court. The Western appeals court’s judges ultimately voted against that, but a total of five active or senior judges recorded their disapproval of the special prosecutor appointment.

In an opinion released last October, Judge Consuelo Callahan led the charge against the move, painting the court’s action as constitutionally suspect and unnecessary. She said the court should simply have let outside lawyers already authorized to act as friends of the court defend Bolton’s ruling without having anyone formally step into the prosecutor’s shoes.

“The majority's conflation of the routine appointment of amici with 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,” Callahan warned.

The Trump administration apparently gave serious thought to Callahan’s suggestion, filing a request to halt all action on the appeal while Solicitor General Noel Francisco and other officials considered whether to escalate the issue to the Supreme Court.

However, the suspense over that decision ended Wednesday, when Justice Department lawyers notified the 9th Circuit that Francisco decided on New Year’s Day that the government will pass up its chance to take the case to the justices.

But Arpaio lawyer Jack Wilenchik told POLITICO that the former sheriff’s attorneys plan to ask the Supreme Court to weigh in, regardless of the Justice Department’s stance.

“The issue is can the prosecutor in a criminal case be replaced by the court, replaced by a judge, when apparently the court doesn’t like what the prosecutor is doing in it,” Wilenchik said. “It does have very far reaching implications.”

The appeals court previously appointed a former Justice Department public integrity section lawyer, Christopher Caldwell, to act as special prosecutor in the case. The new Justice Department notice asked the appeals court to set a briefing schedule in the case.

However, Wilenchik said he will likely ask the 9th Circuit to put the case on hold pending the planned Supreme Court petition.

No explanation for the Justice Department’s decision was given in the court filing Wednesday. A spokeswoman for the department declined to comment for this story.