Attorneys for former Maricopa County, Ariz., Sheriff Joe Arpaio say the appeals court went too far in naming a special prosecutor rather than just letting him or others present arguments as friends of the court. | Matt York, File/AP Photo Arpaio asks Supreme Court to block special prosecutor in contempt fight

Former Arizona Sheriff Joe Arpaio is asking the Supreme Court to block a judicially appointed special prosecutor from arguing against Arpaio in a legal fight over the scope of the pardon President Donald Trump issued to him last year.

Lawyers for Arpaio filed a petition with the justices Wednesday arguing that the 9th Circuit Court of Appeals acted unconstitutionally when it declared that a special prosecutor should be named to defend a district court judge’s ruling limiting the effect of Trump’s decision to pardon Arpaio in a contempt of court case.


A 9th Circuit panel ruled last April that appointment of a special prosecutor was appropriate because the Justice Department indicated it disagreed with U.S. District Court Judge Susan Bolton’s ruling that Trump’s pardon ended the criminal case and eliminated any risk of punishment for Arpaio, but did not require granting Arpaio’s request to vacate the guilty verdict she returned against him for defying another judge’s orders in a racial-profiling lawsuit.

Attorneys for the 86-year-old Arpaio say the appeals court went too far in naming former prosecutor Christopher Caldwell to act as a special prosecutor rather than just allowing him or others to present legal arguments as friends of the court.

“The court may not remove prosecutors because it does not like their position, especially where their position is that the court made a mistake,” Arpaio lawyer Jack Wilenchik and other attorneys argued in the Supreme Court brief. “To remove prosecutors from the case because they intend to argue that the court was wrong smacks of the worst kind of ‘tyrannical licentiousness.’”

The decision to name a special prosecutor in the Arpaio legal fight stirred considerable debate among judges on the 9th Circuit. One judge dissented from the ruling last April, while another four registered their dissent last October when the court announced it would not have a larger 11-judge panel take up the issue.

The October dissent, written by Judge Consuelo Callahan, essentially called on the Supreme Court to step in — a fact Arpaio’s brief prominently mentions.

“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, an appointee of President George W. Bush, said.

Despite Callahan’s urging, Solicitor General Noel Francisco decided earlier this month not to ask the justices to consider the issue. While the Trump administration passed up the chance to take the matter before the justices, POLITICO reported that Arpaio’s lawyers said they intended to do so.

Caldwell, the attorney appointed as special prosecutor in the appeal, did not immediately respond to a request for comment Wednesday.

