F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

J O S E P H M. A R

P A I O , Sheriff, Defendant-Appellant. No. 17-10448

D.C. No. 2:16-cr-01012-SRB -1

ORDER

F iled October 10, 2018

B e fore: A. W allace Tashima, W illiam A. F letcher,

a nd Richard C. Tallman, Circuit J udg es.

Order; Concurrence by

J udg e W

. F letcher; Statement by

J udg e Tashima; Dissent by

J udg e Callahan; Statement by

J udg e TallmanU N I T E D S T A T E S V

. A R

P A I O 2

SUMMARY *

Appointm ent of

Special Counsel

A motions panel filed an order o n behalf of the co u r t d e ny ing rehearing en banc of the motions panel’s April 17, 2018 published order authoriz ing the appointment o f a special prosecutor to provide briefing a n d a r gu m e nt to the merits panel that w ill hear former Sheriff J oe Arpaio’s appeal from the d istr i c t c o urt’s denial of his motion to vacate his conviction for criminal contempt of court.

Concurring in the d enial of rehearing en banc, J udg e W. F letcher, joined by J udg es Graber, W a rdlaw, Gould, Paez
, and Christen, wrote to emphasiz e the l i mited r ole of the special prosecutor and the leg ality of the order.

I n a statement reg arding the d enial of rehearing en banc, J udg e Tashima wrote that he ag rees with and fully supports J udg e W

. F letcher’s concurrence in the denial of rehearing en banc.

Dissenting from the denial of recon s i d er ation en banc, J udg e Callahan, joined b y J u dg es B y bee, B e a, and I kuta,
wrote that the pane l s h o u ld have stuck to the tried and true solution of simply appointing amicus c uriae to d efend t h e district court’s vacatur ruling in this situation i n w h ich the Department of J ustice ag rees that th e conviction should be

v a cated. She wrote that the appointment of the s p e c i al prosecutor is ill-advised and unnecessary , constitutionally

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. A R

P A I O 3

i n f i rm, and an unprecedented and unauthoriz ed intrusion o f

ex e c utive power.

I n a statement reg arding the denial o f rehearing en banc, J udg e Tallman wrote that he ag rees with the views ex pressed by J udg e Callahan in her dissent from the denial of rehearing en banc.

ORDER

A j udg e of the court sua sponte called for a v o t e o n whether to rehear en banc the published order in thi s c a s e dated April 17, 2018. A v ote was taken, and a majority of the non-recused ac t i v e j u dg es of the c ourt failed to v ote for en banc rehearing

. F e d. R. App. P. 35(f). Rehearing e n banc is DENIED

.

W

. F L ETCHER, Circuit J udg e , j oined by GRAB ER, W A RDL A W
, GOUL D, PAEZ
, and CHRI STEN, Circui t J udg e s, concurring in the denial of rehearing en banc:

F ormer Sheriff J oe Arpaio h as appealed to our court from the d istrict court’s denial of a motion to vacate his conviction for criminal c ontempt of court. O n April 17, 2 018, a motions panel of our court issued an order authoriz ing the appointment of a “special prosecutor to provide briefing a nd
arg ument to the merits p anel” that will hear Arpaio’s appeal. United States v. Arpaio
, 887 F .3d 979, 980 (9th Cir. 2018). The role of the “special prosecutor” under the order will be limited to providing briefing and arg ument to t h e m e rits panel.U N I T E D S T A T E S V

. A R

P A I O 4

A member of our court unsuccessfully soug ht en banc rehearing and reversa l o f the order of the motions panel. Several judg es now dissent from the decision of our full court not to rehear the matter en banc. I concur in the denial of en banc rehearing

. I write to emphasiz e two thing s—the limited role of the special prosecutor, and the leg ality of the order.

I

. L imited Role of the Special Prosecutor

Arpaio v iolated a

n order of the district court. T h e United States prosecuted Arpaio for criminal contempt of court and obtained a convict i o n o n J uly 31, 2017. President Trump pardoned Arpaio on Au g u s t 2 5, prior to sentencing by the district court. Arpaio then moved to d ismiss the prosecution and to vacate the conviction. On October 19, 2017, the district court g ranted Arpa i o’s motion to dismiss the prosecution b u t d enied his motion to vacate the c o n v i ction. Arpaio appealed the denial.

On D ecember 13, 2017, i n r esponse to an inquiry from

our court, the g overnment wrote that i t “does n ot intend to defend the district court’s order from October 19, 2017 . . . ; instead, the g overnment intends to a r gu e, as it did in the district court, that the motion to vacate should have been
g ranted.” U nited States Statement at 2. T he g overnment took “no position on whether the Court should appoint counsel to make any additional arg uments.” Id. The motions panel then issued the order now at issue on April 17, 2018.

After the motions panel issued its order, the g overnment objected to the appointment of a private attorney as a special
pro s e c u t or, reversing the position it had taken on December 13. The g overnment wrote on J une 22, 2018: “ The prosecution of c rimes is a prerog ative of the Ex ecutiveU N I T E D S T A T E S V

. A R

P A I O 5

Br an c h

, subject to a n arrow ex ception f or appointment of a

s pecial prosecutor in contempt actions that is codified i n [ F ederal] Rule [ of C r i m i n al Procedure] 42. B ut the appointment o f a special prosecutor u nder the circumstances of this case does not fit within that narrow ex ception, and thus would intrude into an area that is constitutionally reserved for the Ex ecutive.” United States B rief at 2.

The role of a private attorney appointed a s a special prosecutor, either under Rule 42 or under the court’s inherent authority

, is the same as the role of a federal prosecutor. The role o f a federal prosecutor, and the corr e s p o n d i ng r ole of a special prosecutor, is not limited t o a c t i ons in the district
court. T he role of a federal pro s e c u t o r is to initiate a prosecution for contempt of c ourt, to prosecute the c ase in the district court, a

nd, if a conviction is obta i n e d

, t o d efend the conviction in the district court and the court of appeals.

I n the case before u s, the g overnment w as s u c c e ssful in obtaining a conviction for criminal con t e m p t of court. The part o f the prosecutor’s role that re mains is defending on appeal that successful r esult. T h e motions panel authoriz ed the app o i n tment of a special prosecutor to perform that f u n c tion—to present in briefing

, and by oral a rg ument i f
necessary , arg uments in support of the district court’s denial of Arpaio’s motion to vacate his conviction.

I I . L e g ality

of the Order

The dissenters characteriz e the order of the motions panel

as “constitutionally infirm” and as an “unpreceden ted—and unauthoriz ed—intrusion of e x ecutive power.” Diss. O p

. at 13. This is incorrect.U N I T E D S T A T E S V

. A R

P A I O 6

The order o f the motions panel was an ex ercise of judicial rather than ex ecutive p ower. The or der authoriz es the appointment of p r i v a t e c o unsel to assist the court in evaluating the merits of an appeal, in a criminal contempt-ofcourt case, after the g overnment has declined to perform that function.

A. Rule 42

F ederal Rule of Criminal Procedure 42 applies equally to all federal courts in which a g overnment or special p rosecutor would act—whether seeking and obtaining in district court a conviction for criminal contempt, or d efending in an a p pellate
court a conviction o btained in the district court. F ederal Rule of Criminal Procedure 1, provides:

These rules g ov e r n the procedure in all criminal proceeding s in the United States district courts, the Un i t e d States courts o f appeals, and the Supreme Court of the United States.

F E D

. R. C R

I M

. P. 1(a)(1).

F ederal Rule of Criminal Procedure 4 2 (a)(2) a uthoriz e s the a ppointment of a private attorney to prosecute criminal contempt of court when the g overnment declines that role. I t provides:

Appointing a P rosecutor: The c ourt must request that the contempt be prosecuted by an attorney for the g overnment, unless the interest of justice requires the a ppointment o f

an o ther attorney

. I f the g overnment declinesU N I T E D S T A T E S V

. A R

P A I O 7

the request, t h e court must appoint another attorney to prosecute the contempt.

F E D

. R. C R

I M

. P. 42(a)(2) (second emphasis added).

Rule 4 2(a)(2) is not i t s e l f t he source of a federal court’s authority to appoint a private a ttorney as a special p rosecutor to perform the r o le o f a g overnment a ttorney in prosecuting

a criminal contempt o f court. Rather, it is an implementation of a c ourt’s p re-ex isting inh e re nt authority to appoint a special prosecuto r when the g overnment declines to prosecute.

An earlier version of Rule 42 d id not ex plicitly authoriz e the appointment of a private attorney as a special prosecutor
to prosecute criminal c ontempt of c ourt. T he earlier Rule provided only that notice b e g iven to an a l l e g ed contemnor that a g overnment or private attorney had bee n a p p o i nted to prosecute the contempt. I n Y oung v. Un i t e d S tates ex rel. Vuitton
, 481 U .S. 787, 793 (1987), th e S e c o n d Circuit h ad upheld a district court order appointing two private attorney s as “special prosecutors” to prosecute a criminal contempt of
court. The Supreme Court struck down the appointme nt on the g round tha t t he two special prosecutors were not disinterested, g iven that they represented one o f the parties in the u nderlyi n g civil c ase. B ut the Court wrote at leng th to uphold the rig ht of the court to a p point a disinterested private attorney as a special prosecutor.

The Court acknowledg ed that Rule 42, as then wr itten, did n ot ex plicitly authoriz e a c ourt to appoint p r ivate attorney s as special prosecutors. B ut it held that courts have
pre-ex isting inherent authority to make such appointments.U N I T E D S T A T E S V

. A R

P A I O 8

W h ile it is true that F ederal Rule of Criminal P r o c e d u r e 4 2 ( b ) d o e s n o t p r o v i d e authoriz ation for the appointment of a private attorney , it is long settled that courts possess inherent authority to initiate contempt proceeding s for disobe d ience to their orders, authority which necessarily encompasses the ab i lity to appoint a private attorney to prosecute the contempt

.

Id. (emphases added).

R ule 42 was amended in 2002 to add what is now R u l e 42(a)(2). T he Committee Notes ci t e Y oung and e x plain the rationale for the amendment:

Revised Rule 42(a)(2) now ex plici t l y addresses the appointment of a “prosecutor” and adopts lang uag e to reflect t h e holding in Y o ung v. United S

tates ex rel. Vuitt o n , 481 U.S. 787 (198 7 )

. I n that case the Supreme Court indic a t ed that ordinarily the
court should request that an attorney for t h e g ove r n m ent prosecute the contempt; only if that request is denied, should the court appoint

a private prosecutor. Th e rule envisions that

a disinterested counsel should b e appointed to prosecute the contempt.

F E D

. R. C R

I M

. P. 42 Advisory Committee Notes to 2002 amendment.U N I T E D S T A T E S V

. A R

P A I O 9

B . I nherent Power

Rule 42 is rooted i n the long standing inherent power o f the judiciary to appoint d is i n t erested private attorney s a s special prosecutors to p ursue criminal contempt proceeding s in federal court when g overnment prosecutors are unw i l ling

or unable to perform that function. T he Court in Y oung made clear that Rule 42 is rooted in an inherent judicial p ower that

ex ist s independently of the Rule. Ordinary criminal prosecutions are, of course, ex ercises of the ex ecutive power. Prosecutions for c r iminal contempt o f court are d i fferent. Such prosecutions are vindications of the judicial power, a nd the use of private attorney s as special prosecutors is p a r t o f the judicial function. The Court wrote in Y oung :

The Rule’s assumption that private att o r ney s may be used to prosecute contempt ac t i o n s reflect s t h e l o n g s t a n d i n g a c k n owledg ment that the initiation of co n tempt proceeding s to punish disobedience to court orders is a part of the judicial function

.

Y o ung , 481 U.S. at 795 (emphasis added).

I n the case before us, a g o v ernment prosecutor soug ht a nd obtained a conviction f

or criminal contempt in the district
court. T h e g overnment then declined to defend the conviction when Arpaio appealed the district court’s denial o f his motion for vacatur. The Court in Y oung instructs us what to do in that circumstance:

I f the J udiciary w ere c ompletely dependent on the Ex ecutive B ranch to redress direct affronts
to its authority

, it w ould be p owerless toU N I T E D S T A T E S V

. A R

P A I O 10

protect itself if that B ranch decli n ed prosecution. The log ic of this rationale is that

a court ordinarily should fi rs t request the appropriate prosecuting authority to p r osecute

c ontempt actions, and should appoint a privat e prosecutor only if that r e q uest is denied. Such

a procedure e nsures that the court will

ex e rcise its inherent p o wer of self-protection only as a last resort.

Id. at 801.

O u r court followed the procedure prescribed in Y oung

. W e inquired whether the g overnment would defend Arpaio’s conviction on appeal. W hen the g overnment responded that it did not int e n d t o do so, the motions panel issued an order authoriz ing the appointment o f a special prosecutor to perform the prosecutorial functions that the g overnment had declined to perform. Such an appointm e n t , a s the Court’s

o pinion in Y

oung makes clear, is “part of the judicial function,” e nabling the judiciary “to p r o tect itself if [ the Ex ecutive] B ranch decline[ s] prosecution.” Id. at 795, 801.

I I I . Our Dissenting Colleag u es’ View

Our dissenting colleag ues have a much narrower view o f Rule 42 and the judiciary ’s inherent power. They concede, a s they must, that t h e judicial branch has the authority under Rule 42 and its inherent p o wer to “protect itself” if the

ex e c utive b r a n ch declines to p rovide that protection. They also concede, as they must, that a court’s authority under Rule 42 and its inherent power ex tends to the appointment o f private a ttorney s as special pros e cutors to initiate proceeding s for criminal contempt of court.U N I T E D S T A T E S V

. A R

P A I O 11

However, o ur colleag ues contend that a c ourt’s authority

e n d s as soon as c riminal contempt-of-court p roceeding s a r e “initiated.” Diss. Op. at 1 7–18. They wri t e, “Once a

co n t empt p roceeding beg ins, the c ourt’s authority is vindicated and the court has no further stake in the matter.” Id. This cannot be ri gh t. Mere “initiation” of a criminal contempt proceeding is h ardly sufficient to protect the integ rity o f t h e c ourt. Actual prosecution of that c ontempt,

once initiated, is necessary

. Defense of a conviction on appeal is also necessary . That is, all of the normal functions of a p rosecutor are necessary if the judiciary is f ully to “protect itself” when the ex ecutive branch declines to provide that protection.

* * *

The order of the motions panel authoriz ed t he appointment of a special p rosecutor u n d e r Rule 42 and its inherent power. During the p endency of A rpaio’s appeal to

our court, the special prosecutor w ill continue the prosecution for cri m inal contempt o f court that the g overnment has abandoned.

O n c e t h e g o vernment declined to c o ntinue the prosecuti o n by defending Arpa i o ’s c onviction on appeal, the motions panel had no c hoice. Rule 42 specifies that if the g overnment declines to prosecute, “the court must appoint an o ther
at t o r n e y to prosecute the contempt.” F E D

. R. C R I M

. P. 42(a)(2) (emphasis added). As the Supreme Court wrote in Y o ung :

I f the J udiciary w ere c ompletely dependent on the Ex ecutive B ranch to redress direct affronts
to its authority

, it w ould be p owerless toU N I T E D S T A T E S V

. A R

P A I O 12

protect itself if that B ranch decli n ed prosecution.

481 U.S. at 801.

TASHI MA, Senior Circuit J udg e, statement r eg arding denial of rehearing

en banc:

I ag ree with and fully support J u d ge F letcher’s concurrence in the denial of rehearing en banc.

CAL L A HAN, Circuit J udg e, with whom B YB E E
, B EA, a nd I KUTA, Circuit J udg es, join, dissenting from denial o f reconsideration en banc:

The question before the motions panel w as a simple o ne: Given that the Unites States Department of J ustice ag rees with t h e a p pellant, Sheriff Arpaio, on the leg al point that Arpaio’s contempt c onviction should be vacated, what should the court d o to ensure the merits panel receives b riefing a nd
arg ument on both sides of the i s s u e? The tried and true solution is to appoint amicus curiae to provide such briefing

. The p anel majority

, unsatisf i e d with having already appointed amici c u r i ae w ho have ably briefed the merits, took the

u n precedented step of appointing a “special prosecutor” to supplant the Department of J ustice.

W e sho uld have r econsidered the majority ’s decision en banc. As J udg e Tallman states in his dissent, the appointment of a special p rosecutor is “ill-advised and unnecessary

. ”U N I T E D S T A T E S V

. A R

P A I O 13

T h e appointment is also constitutionally infirm. T h e majorit y ’s we-see-no-reason-why -not approach d oes not justify its admittedly u nprecedented—and unauthoriz ed— intrusion of ex ecutive power.

I

J udg e G. Murray Snow ( D

. Ar iz .) issued an o rder o f charg es for crimi n a l contempt a g ainst former Maricopa County Sheriff J oseph M. Arpaio (and others), and requested that the United States Attorney ’s office prosec ute Sheriff Arpaio. T he g overnment accepted the request, and the Public I nteg rity Section o f the United States Department o f J u stice successfully pros e cuted Sheriff Arpaio in a b e nch trial conducted by J udg e Susan R. B olton, obtaining a conviction of criminal c ontempt on J uly 3 1, 2 017. B e fo r e sentencing

, however, President Donald Trump pardoned Arpaio. Rather than c halleng e the conviction, the sheriff accepted the pardon. H e t h e n moved to dismiss the action and to vacate the conviction and all o ther orders in the case. The district court g ranted the f

irst request but denied the seco n d

. Arpaio appeals from the denial of the motion to vacate. 1

Non-parties who served as am ici c uriae in the district
court proceeding s filed a motion requesting p er m ission to

1 Sh erif f A rp aio ’ s ap p eal is lim ited to th e qu estio n o f w h eth er, in lig h t

o f th e p ard o n , t

h e d istrict co u rt s h o u ld h av e v acat e d t h e co n v ictio n

. No

o n e ap p ealed th e o rd er dism issin g th e actio n

. Ou r co u rt d en ied a late- f iled
req u est f or th e a p p o in tm en t o f co u n sel to cro ss- ap p eal th e d i sm issal on b eh alf o f th e g o v ern m en t b ecau se th e tim e to ap p eal h ad ex p ired

.U N I T E D S T A T E S V

. A R

P A I O 14

participate as amici c uriae in the appe a l

. 2 The motion also asked the c ourt “to appoint a private attorney ” under F ederal Rule o f Criminal Proce d u r e 4 2 to defend the denial of the request for vacatur “to ensure that this Court has t h e f ull set of issues in this matter before it in an adversarial proceeding

. ” The court g ranted the m o t ion in part, directed that the Clerk file amici curiae’s proposed merits b rief, whic h defends the district court’s decisio n , an d allowed amici to file a supplemental merits brief. 3

The motions panel also o r dered the g overnment to “file a statement indicating whether it intends to enter an appearance and file an answering brief in this appeal.” T he order f urther stated that if the g over nment intended not to defend the district c ourt’s order deny ing the motion to vacate, the
g overnment “shall also provide its position on whet her this
court should appoint counsel to represent the g overnment’s interests on a

ppeal and defend the d istrict court’s order.” The

o r d e r did n ot indicate that the panel was considering replacing the g overnment with a “special prosecutor.”

The g overnment r esponded that it “intends to represent the g overnment’s interests in t h i s appeal.” The g overnment further stated tha t i t “does not intend to defend the district

2 T h ese am ici in clu d e T h e P ro tect D em o cracy P ro j ect, In c. (w

h ich is
rep resen ted b y P erk in s Co i e LLP a n d Messin g & Sp ecto r L L P ), F ree Sp eech f o r P eo p le, T h e Co alitio n to P reserv e, P ro tect an d Def en d, an d th e Ro d erick an d So lan g e MacA rth u r J u stice Cen ter (No rth w estern P ritzk er Sch o o l o f L aw ).

3 Oth er n on

- p arties, Erw in C h em erin sk y , Mich ael E. T ig ar, an d Jan e B

. T ig ar (w

h o are rep resen ted b y Rio rd an & Ho rg an ), h av e also so u g h t leav e to f

ile a b rief a s a m i c i c u

riae an d su

b m itted a p ro p o sed b rief d ef en d in g th e d i strict co u rt’ s d en ial o f th e req u est f

o r v acatu r.U N I T E D S T A T E S V

. A R

P A I O 15

court’s o rder from O ctober 19, 2017

. . . ; instead, the
g overnment intends to arg ue, as it did in the distr i c t c o urt, that the motion to vacate should have b een g ranted. W e take

no position on whether the Court should appoint counse l t o make any additional arg uments.”

On A pril 17, 2018, over a dissent by J udg e Tallman, the motions p anel issued its pu b l ished order stating it “will appoint a s p e c ial prosecutor.” United States v. Arpaio
, 887 F .3d 979, 980 (9th Cir. 2018). The panel acknowledg ed the lack of any precedent for the court a ppointing a special prosecutor in a proceeding with a similar post u r e

. Id. at 981–82. T he panel ju s t i f i e d its u n

precedented action b y stating

, “[ w] e see no reason why such appointment should not take place under Rule 42(a)(2).” Id. at 982.

The parties were then ordered to file supplemental briefs

on “whether the Court has the authority

, eith er pursuant to F ed. R. Crim. P. 42(a)(2) or under its inherent a uthor i t y , to appoint a special prosecutor under the circumstances presented b y this case.” United Sta t e s v. Arpaio
, 891 F .3d 1130, 1130–31 (9th Cir. 2018). Th e p arties and amici filed supplemental briefs. The Department of J ustice made clear in its brief that it has no intent t o c e de its role as the prosecutor w ho broug ht t h i s a ction to a replacement special prosecutor. The g ove r n m e n t arg ued that the court lacks the power to appoint a special prosecutor, as opposed to amicus counsel, at this stag e of the proceeding s.U N I T E D S T A T E S V

. A R

P A I O 16

I I

A

A court’s authority to appoint a “special prosecutor” i s

ex tremely limited. Such an ex ercise of e x ecutive-like power is authoriz ed only when necessary to vindicate the c o u rt’s

own a uthority

. See Y

oung v

. U.S. ex rel. Vuitton et Fils S .A.
, 481 U.S. 787, 793–96, 800–01 (1987).

“The principle of separation o f powers was not simply an abst r a c t g eneraliz ation in the minds o f the F ramers: it was

woven into the document that they drafted in Philadelphia in the summer of 178 7

. ” B u ckley v. Valeo

, 424 U.S. 1, 124 (1976). “Each branch ‘ex ercise[ s]

. . . the powers appropriate
to its own department,’ and no branch c an ‘encroach upon the
powers confided to the others.’” Patchak v. Zinke

, 138 S. Ct. 897, 904–05 (2018) (alterations in orig i n a l )

. The Supreme Court has cautioned that each branch— i n c l uding the judiciary —must “resist[ ] ” the inherent pressure “to ex c eed the outer limits of its power, even t o a ccomplish desirable objectives.” I.N.S. v. Chadha , 462 U.S. 919, 951 (1983).

The judicial b ranch c annot take, or be g iven by another branch, “ex ecutive . . . duties of a nonjudicial nature” where such d uties are not provided for i n t h e Constitution. See Buckley

, 4 24 U.S. at 123. “The purpose of this limitation is
to h elp ensure the independence o f the J u dicial B ranch and to prevent the J udiciary from encroaching into areas reserved for the o ther branch e s

. ” Morrison v. O lson

, 487 U.S. 654, 677–78 ( 1988). The Sup r e me Court commands “vig ilance”
ag ainst the “dang er[ ] ” o f the judicial bra n c h b e ing “allowed ‘tasks that are more p r operly accomplished by [ other]U N I T E D S T A T E S V

. A R

P A I O 17

b r a nches.’” M

istretta v. United States
, 488 U.S. 361, 38 3 (1989) (quoting Morrison
, 487 U.S. at 680–81).

Althoug h the Constitution squarely endows the e x ecutive branch with the prosecutorial power, the Supreme Court has

r e cog n iz e d a limited judicial p ower to appoint a special prosecutor to initiate c riminal contempt proceedings. See Y o ung , 481 U.S. at 800–01. This inherent power is justified by the judiciary ’s need “to vindicate its own authority without complete dependence on o ther B ranches.” Id. at 7 96. B ut that doesn’t g ive courts carte blanche to ex ercise control over this ex ecutive function wheneve r t h e y “ see no reason why ”
not. See Arpaio
, 887 F .3d a t 982. Rather, “ [ t ] h e need to vindicate a court’s a

u thority is

. . . satisfie d b y ensuring that

an alleg ed contemner will h av e to account f or h is or her behavior in a leg al proceeding

, rega r d less of whether the party is ultimately convicted or acquitted.” Y oung , 481 U.S. at 796 n.8.

I n other words, the need for the judiciary ’s limited quasiex e c utive p ower—and thus the power itself—is ex ting u ished

once criminal c o n t e mpt proceeding s are initiated

. The Supreme Court repeate d s e v eral times in Y oung that the
power of appointment is limi t e d to the “initiation” o f

c o n t em p t proceeding s. See, e.g. , Y oung , 481 U.S. a t 793 (“[ C] ourts possess inherent auth o r i t y to initiate contempt proceed i n gs for disobedience to their orders.” (emphasis added)); id. a t 795 (“[ T] he initiation o f contempt proceeding s to punish disobedience to court orders is a part of the judicial function.” (emphasis a dded)); id. a t 796 (“Courts cannot be
at the mercy of another B ranch in deciding whet h e r s u ch
pro c e e d ing s should b e initiated

. ” (emphasis added)); id. at 800–01 (“[ C] ourts have long had

. . . the authority to appoint private a ttorney s to ini t iate such p roceeding s.” (emphasisU N I T E D S T A T E S V

. A R

P A I O 18

added)); id. a t 801 ( “ [ A ] court has the authority to initiate a prosecution f

o r c r iminal contempt.” (emphasis a dded)). Once

a contempt proceeding beg ins, the court’s a u t h o r ity is vi n d i cated and the court has n o further stake in the matter. See i d

. a t 796 n.8 (“A court’s ability to institute a contempt proceeding is therefore essential to the vindication o f its authority in a way that th e a b i l i t y to determine g uilt o r innocence is not.”). 4

Additionally

, al t h o ug h “a court has the authority to initiate a prosecution f

or c riminal contempt, its ex e rcise o f that authority must be restrained by the p r i n c i p l e that ‘only “[ t] he least possible power adeq u ate to the end proposed” should be used in c ontem p t ca ses.’” Id. a t 801 (quoting United States v

. W

ilson

, 421 U.S. 309, 319 (1975)) (alteration in orig inal). “This principle of restraint in contempt counsels caution in the ex e rcise of the p ower t o a ppoint a private
p rosecutor.” Id. Such power ex ists “ only as a last resort,” which means only if the court f irst a sk s t h e appropriate prosecuting authority to initiate c ont e mpt proceeding s a nd that request is declined. Id.

B

The majority reaches two conclusion s in support of its decision to “appoint a special prosecutor.” Fi r st, while acknowledg ing there is no precedent for ex pansion of the

4 Ev en if a co u rt’ s p o w er to ap p o in t a p ro secu to r is n o t ex tin g u ish ed

u p o n t h e in itiatio n o f crim in al p ro ceed in g s, su ch p o w er certain ly d oes n o t

su rv i v e past an u n ap p ealed co n v ictio n

. In t h is reg ard

, th e p o stu

re o f th is

case is sig n if

ican t. Rath er th an ch allen g e h i s co n v ictio n , A rp aio ch o se to accep t t h e Presid en tial pard o n

. T h e district co u rt th en p ro p erly d i s m issed th e case in lig h t o f th e p ard on

. A rp aio d o es n ot ap p eal h is co n v ictio n ; h e ap p eals on ly th e d istrict co u rt’ s ref u sal t o v acate i ts d eterm in atio n o f g u ilt.U N I T E D S T A T E S V

. A R

P A I O 19

power to appoint a special prosecutor to the situation here, the majority nonetheless concludes that it “ha[ s] the authority to appoint counsel under F ederal Rule o f Criminal Procedure 42.” Arpaio
, 887 F .3d at 98 1

. S e c o nd, the panel concludes it “ha[ s] inherent authority to appoint special counsel.” Id. at 982. Neither conclusion withstands scrutiny

.

The majority ’s assertion t h at Rule 42 empowers federal judg es to appoint a special prosecutor is simply wrong . The Supreme Court st at e d in Y oung that Rule 42 “does not provide authoriz ation for the appointment of a p r ivate attorney .” Y

oung , 481 U.S. at 793; see id. at 794 (observing that Rule 42 “does n ot itself purport to serve a s authoriz ation for” the practice of appointing a special prosecutor). Rather, such limited authority is inherent in the constitutional g rant of power to the judiciary

, and Rule 42 merely refers to that authority and “speaks only to the pr o c e d u re for providing notice of c riminal c ontempt.” Id. at 793 (emphasis omitted). The F ederal Rules of Criminal Procedure, as promulg a ted b y the Supreme Court under the Rules Enabling A c t , could no

more grant Article I I I judg es the p o w e r to appoint a prosecutor to initiate criminal p r o c e eding s than the judicial branch or leg islative branch could u n i l a terally usurp some purely ex e cutive function.

The only ex planations offered for the majority ’s asserted
power to appoint a special pros e c u t or is that the majority “see[ s] no reason why such an a ppointment shoul d n ot take place under Rule 42” and that the “operation” of Rule 42 “ is
not confined to investig ations and trials in the district court.”U N I T E D S T A T E S V

. A R

P A I O 20

I d

. at 9 8 1–82. 5 I n seeing no reason to doubt its authority to appoint a special prosecutor, th e majority overlooks constitutional constraints on the court’s power.

Curiously

, the majority seeks to justify the appointm e n t of a special prosecutor by r e ly i n g o n the “long standing practice” of appointing a disinterested party to serve a s amicus curiae to defend a lower court’s decision when the United States declines to defend the decision. 6 Arpaio
, 887 F .3d at 982. To state th e obvious: appointment of a special prosecutor as contemplated by Rule 42 is not the same thing as appointment of appellate counsel or a m i cu s curiae simply to br ief and a

rg ue a case on appeal. A “special
p r o s e cutor” is “[ a] lawy er appointed to investig ate a nd, i f justified, seek indictments in a particular case.” Prosecutor, B lack’s L aw Dictionary ( 1 0th ed. 2014). I n contrast, “amicus curiae” is “[ s] omeone w ho is n o t a party to a lawsuit but w ho

5 In asser t i ng th at th e “ op eratio n ” of Ru le 4 2 is n o t co n f in ed to activ ities in t

h e d istrict co u rt, th e p a n e l fa i l s to reco g n ize th e d i stin ctio n b etw een a sp ecia l p ro secu to r’s p o w ers on ce ap p oin ted (w h i ch can

co n tin u e in to an ap p eal) an d th e co u rt’s p ow er to ap p o in t a s p e cial
p ro secu to r in th e f

irst in stan ce o n ap p eal. T h e m aj o rity cites n o au t h o rity

s t a t in g t h at th e j u d iciary ’ s p o w er to ap p o i n t a sp ecial pro s ecu to r i s

co term in o u s w ith th e h y

po th etical du ra t i o n o f th e sp ecial pro secu to r’ s p o w er o n ce ap p o in t ed

. In d eed

, su ch a v i e w is co n trary to t h e Yo u n g Co u rt’ s n arro w

co n stru ctio n

o f th e j u d iciary ’ s p o w er.

6 A m ici’ s attem

p t t o def en d th e m aj o rity ’ s d ecisio n su f f ers f ro m th e

sam e d ef ect. T ellin g ly

, in th e i r b r i e f o n th e en b an c q u estio n , am i ci
p ain stak in g ly av o id u sin g th e term “ sp ecial p ro secu to r” o th er th an w h en q u o tin g th e p an el’ s o rd er an d recitin g Y o u n g ’ s h o l d in g th at “ co u rts p o ssess in h eren t au th o rity to i n itiate co n tem p t pro c e e d in g s.” In stead

, lik e th e p an el, th ey seek t o j u s tif y th e o rd er b y assertin g th e u n d isp u ted
p ro p ositio n th at co u rts h av e th e po w er to ap p o in t am icu s o r ap p ellate

co u n sel to d ef

en d a lo w er co u rt’ s j u d g m en t

.U N I T E D S T A T E S V

. A R

P A I O 21

p e t i t ions the court o r is requested by the court to file a brief in the action because that p er s o n h a s a strong interest in the subject matter.” Amicus Curiae, B lack’s L aw Dictionary (1 0 th ed. 2014). As the Department of J ustice notes, “[ t] he d istinction is important because, by its nature, c oun s el appointed as amicus would be limited to def e n d i n g the judg ment and could not cla i m a ny of the powers associated with a special prosecutor.” 7

Despite the clear distinction between a “special prosecutor” o n the one hand a n d “appellate counsel,” “counsel,” or “amicus curiae” on the other hand, the majority uses these distinct labels throug hout its order as if they were

7 A s p ecial p ro secu to r’ s p ow ers are br o a d

. A sp ecial p ro secu to r ap p o in ted b y th e A tto rn ey Gen eral u n d er th e f o rm er Eth i cs in Go v ern m en t A ct, an d th e reg u latio n s th at rep laced th at A ct w h en it ex p ired i n 1 9 9 9
, is b esto w ed w i th “ th e f

u ll p o w er an d in d ep en d en t au th o rity to ex ercise all in v estig ativ e an d p ro secu t o rial f u n ctio n s o f an y Un ited States A tto rn ey .” 2 8 C.F.R. § 6 0 0.6 ; see a lso 2 8 U.S.C. § 5 9 4 (a) (p ro v id in g th at a sp ecial
p ro secu to r’ s p o w ers in clu d e “ co n d u ctin g p ro ceed in g s b ef o re g ran d j u ries

an d oth er in v estig atio n s,” “ m ak i n g ap plicatio n s to an y F ed eral co u rt

. . . f o r w arran ts, su

b p o en as, o r o th er co u rt ord ers,” an d “ in itiatin g an d

co n d u ct i n g p ro secu tio n s in an y co u rt of co m p eten t j u risd ictio n , f

ram in g

an d sig n in g in d ictm en ts, f ilin g in f o rm atio n s , an d h an d lin g all asp ec t s of

an y cases, in th e n a m e of th e Un ited S tates”). A sp ecial p ro secu to r ap p o in ted u n d er Ru le 42 to p ro secu te co n tem pt n ecessarily h as th e sam e,

o r at l e a s t s i m ilar, p ro secu to rial p o w ers. A n d j u st as w e h av e n o ab ility
to ex p an d o r to restrict th e Un ited S tates A tto rn ey ’ s p ro secu to rial p o w ers,

w e are p o w erless to ex ercise co n tro l o v er th e p ro secu to rial f u n ctio n o f a sp ecial p ro secu to r ap p o i n t e d t o rep resen t th e g o v ern m en t. Here, of

co u rse, th e m o v an ts w ish th e sp ecial p ro s ecu to r to t a k e a p o sitio n in litig atio n th at th e d istrict co u rt p ro p erly d en ied A rp aio ’ s m otio n t o v acate th e f act o f h i s co n

v ictio n

. T h at is d irectly

o p p o site to th e p o sitio n tak en b y th e Un ited States. T h e p an el d o es n o t tell u s w h o w ill reso l v e su ch

co n f licts betw een th e sp ecial p ro secu t o r an d th e U n ited States Dep artm en t

o f J u stice.U N I T E D S T A T E S V

. A R

P A I O 22

interchang e able. 8 T h e majority ’ s citation to Lucia v

. S E C
, 138 S. Ct. 9 23 (2018), is ironic. See A rpaio
, 887 F .3d at 982. I n that case, the Supreme Court invited a pa r t i c u lar attorney “to brief and arg

ue this case, as amicus curiae , in support o f the judg ment below.” Lucia
, 138 S. Ct. 923. L ike in Lucia
, the p anel’s prior appointment of amici is all that i s n eeded here. Yet the major i t y eschews the Supreme Court’s approach, instead somehow f inding in Lucia ’s s i n gl esentence a

ppointm e n t of amicus curiae support for the appointm ent of a special prosecutor to displace the Department of J ustice.

The majority ’s conflation of the routine appointment o f amici with the ex traordi n a r y a ct of appointing a special prosecutor n ot only v i o l a t e s the separation of powers, but is also sloppy

, creates bad law, a nd i n vites reversal by the Supreme Court.

C

The appointment of a special prosecutor is completely
unnecessary

.

F irst, the United States did not decline the district court’s request to prosecute Sheriff Arpaio for contempt. The district court’s authority was vindicated whe n the g overnment initiat e d contempt proceeding s. Althoug h the district court

8 S ee Arp aio
, 8 8 7 F .3 d at 9 8 1 (“ w e w ill ap p o i n t a sp ecial
p ro secu to r”); id

. (“ u n less w e ap p o i n t a sp ecial p ro secu to r”); id

. (“ w e h av e th e au th o rity to ap p o in t co u n sel u n d er [Ru le 4 2 ” ] ) ; id

. at 9 8 2 (“ w e h av e in h eren t au th o rity

to ap p o in t a sp ecial co u n sel”); id

. (“ in h eren t au t

h o rity
to ap p o in t d isin terested co u n sel”); id

. (“ in h eren t j u d icial p o w er to ap p o i n t ap p ellate co u

n sel”); id

. (“ in h eren t au th o rity

to ap p o in t an am icu s”).U N I T E D S T A T E S V

. A R

P A I O 23

had n o stake in t h e outcome of those proceeding s, the result was in fact a conviction.

Second, the majority ’s sole stated purpose in the appointment—to allow the m erits p anel the b enefit of full briefing and arg ument—does not r e q uire or j ustify the appointment o f a special prosecutor. The court’s only interest in thi s l i t i gation is to have the issues raised on appeal f ully briefed a nd a rg ued, and that p urpose is achieved by the court

ex e r cising its undisputed authority to a ppoint amicus curiae. Ac c ording ly

, even if the g overnment’s position that the dist r ict court is in error would otherwise result in uneven briefing

, the easy solution is the non-controvers i al appointment of amici to brief the issues. 9

I ndeed, the majority ’s assertion that the merits panel “will
not r eceive the benefit of full briefing and arg ument” absent

a p pointment of a special prosecutor is perplex ing in lig ht of the panel’s prior order g ranting various g roups leave to serve

as amici a

nd d irecting that the Clerk f i l e amici’s proposed brief. Given the obvious option o f appointing amicus curiae, perhaps even more perplex ing is o ur c o n curring colleag ues’

9 Co n f essio n o f erro r b y th e g o v ern m en t d oes n o t reliev e t h e co u rt “ of th e p erf o rm an ce o f

th e j u d icial f

u n ctio n .” S ib ro n v. New Yo rk

, 39 2 U .S. 4 0
, 5 8 (1 9 6 8 ); Y

o u ng v

. U

n i t ed Sta tes , 3 15 U.S. 2 5 7
, 2 5 8

– 5 9 (1 9 4 2) (“ [O]u r j u dicial o b lig atio n s co m pel u s to ex am in e in d ep en d en tly t h e erro rs

co n f essed .”). A s stated in th e Fo u rth Circu it case cited b y th e m aj o rity

, “t h e C o u r t c o m m o n l y a p p o in t s a n a m i c u s ”

— n o t a sp e c i a l
p r o s e c u to r—w

h en t h e g o v ern m en t co n f

esses erro r in th e lo w er co u rt’ s j u d g m en t. S

ee Arp a io
, 8 8 7 F .3 d at 9 8 2 (q u otin g Un ited Sta tes v. Bra in er , 6 9 1 F.3 d 6 9 1 , 6 93 (4 th

Cir. 1 9 8 2 )).U N I T E D S T A T E S V

. A R

P A I O 24

sug g estion that the motions panel had “no c h o ice” but to appoint a special prosecutor. Conc. Op. at 11. 1 0

A cursory review of amici ’ s m e r its brief (prepared b y hig hly esteemed counsel) confirms that amici vig orously d efend the district court’s d ecision. Amici will also b e a b l e to r espond to the appellant’s opening brief because the panel

ex p ressly authoriz ed them to “file a suppl e m e n tal brief addressing th e merits o f this a ppeal.” Additional proposed amici have filed a separate proposed merits brief that likewise heartily defends the district court.

Even thoug h the c ourt has received merits briefs on both sides of the only issue in this appeal, the p a n e l m ajority maintains that it is compelled to appoint a special p rosecutor to supplant the DOJ

. W ill the merits panel’s consideration o f the issue somehow be limited b eca u s e amici d o not have prosecutorial p owers in presenting the case f o r affirmance? No. W ill the merits panel’s decision reg arding vacatur somehow be devoid of effect if rendered without the presence of a “special prosecutor” in the case ? No. O n top of our unflag g ing duty to follow the law i n d eciding the appeal on i t s merits ( as in all c ases), do w e have some addit i o n al interest in arriving a t a p articular result or seeing to the punishment of Arpaio? Of course not.

10 T h e co n cu rren ce m ak es th i s assertio n w ith o u t ev e n a t t e m p tin g to

ex p lain w h y th e ap p o in tm en t o f am icu s cu riae is in ad eq u ate to s erv e th e

m aj o rity ’ s so l e p u rp o se o f “ p ro v id [i ng ] b rief in g an d arg u m en t to th e

m erits p an el.” Arp a io
, 8 8 7 F.3 d at 9 80

. We ap po in t am ici all th e tim e to

“ assist th e co u rt in ev alu atin g th e m erits o f an ap p eal.” S ee Co n c. Op

. at 6

.U N I T E D S T A T E S V

. A R

P A I O 25

Nothing about our court resolving this case based on the briefing of the parties and a mici either threatens to r ender the district c ourt that issued the injunction ag ain s t Arpaio impotent or undermines that court’s power in any way . The merits panel’s ultimate resolution of the sole issue in this case simply does not implicate the judiciary ’s interest in ensuring that disobedience of contempt orders is punished.

D

I f simply a

ppointing a mici to present a brief and arg ument would have done the trick, why encroach (or e v e n risk

e n c r oaching ) on the ex ecutive branch’s prerog ative by appointing a special prosecutor?

I t is now the law of this circuit—which covers nearly 20% of the nation’s population—that a judg e may , in the name o f
g etting “full briefing ,” appoint a special p rosecutor to replace the United States Department of J ustice provided the judg e “see[ s] no reason why ” not. Arpaio
, 8 8 7 F. 3 d at 982. A nd the judg e may do this e ven thoug h the federal p r o s e c utor initiates the criminal a ction, o b tai ns a conviction, and f ully intends to represent the g overnment’s interests throug hout the proceeding s. Under the maj o ri t y ’s rationale, a judg e could appoint a special prosecutor w hen he or she simply d isag rees with t h e prosecution strateg y or litig ation position and thus declares that the United States has abandoned the case.

The combination o f the majority ’s holding being unprecedented and so obviously unnecessary to the p a n e l’s stated p u rpose (i.e., to brief t h e m e r i ts of the appeal) will

s e rve only to undermine public confidence in the mer i t s panel’s ultimate decision—whatever it decides. And it isn’t difficult to anticip a t e t h e mischief that is sure to result fromU N I T E D S T A T E S V

. A R

P A I O 26

s u c h an unreasoned application of the judiciary ’s power t o appoint a sp e c i a l prosecutor. J ustice Scalia offered a prophetic warning in his concurring opinion in Y

oung :

I n lig ht of the broad sweep of modern judicial decrees, which h ave the binding effect of laws for those to w h o m t h ey apply

, the notion o f judg es’ in effect making the laws, prosecuting their violation, a

nd sitting i n judg ment o f those p r osecutions, summons forth much

more vividly th an [the Supreme Court in Anderson v

. Dunn
, 6 W heat. 204 (1821)] could ever have imag ined the prospect o f “the most ty rannical licentiousness.”

Y o ung , 481 U.S. at 822 (Scalia

, J

. , c oncurring ) (quoting Anderson

, 6 W heat. at 2 28). Perhaps J ustice Scalia was rig ht all along that “federal courts have n o p o w e r to prosecute contemners for disobedience of court judg ments, and no derivate power to appoint an attorney t o c onduct contempt prosecutions.” Id. at 825 (Scalia, J ., concurring ).

W h i l e S h eriff Arpaio and the Chief Ex ecutive w ho pardoned him have evoked strong f e e ling s from those wi t h opposing political v iews, we a b a n d o n o ur role as impartial j u rists by “wading into that [ p olitical] thicket,” effectively firing the U nited States’ attorney s, and appointing a speci al prosecutor in their stead. See A r p a io
, 887 F

. 3 d a t 986 (Tallman, J ., dissenting ).

I I I

The ex ecutive branch’s role is to prosecute. Our role is to adjudicate. W hen we close our ey es to the constituti o nalU N I T E D S T A T E S V

. A R

P A I O 27

limits of our power, w e are bound to veer out of o ur lane, a nd there’s no telling what else we mig ht do simply because “we

see no reason why ” not. The prosecutors here intend to d o their job—we should let them and worry about doing our o wn job.

The p anel should have stuck to the tried and true solution of simply appointing amicus curiae to defend the district court’s vacatur r

uling

. The prior appointment of a m ici is

more than a dequate to a chieve the panel’s sole stated purpose of g etting briefing a

n d arg ument f

or the merits p a

nel. And, unlike the appointment of a special prosecutor, such an appointment doesn’t run afoul of the Constituti o n ’s separation of powers.

I respectfully d issent from the den i a l of reconsideration en banc.

T A L L MAN, Senior Circuit J udg e, statement reg arding deni a l of rehearing

en banc:

I ag ree with the views ex pressed by J udg e Callahan in her dissent from the denial of rehearing en banc.