FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH M. ARPAIO, Sheriff,

Defendant-Appellant.

No. 17-10448

D.C. No.

2:16-cr-01012-SRB-1

ORDER

Filed October 10, 2018

Before: A. Wallace Tashima, William A. Fletcher,

and Richard C. Tallman, Circuit Judges.

Order;

Concurrence by Judge W. Fletcher;

Statement by Judge Tashima;

Dissent by Judge Callahan;

Statement by Judge Tallman
2 UNITED STATES V. ARPAIO

SUMMARY*

Appointment of Special Counsel

A motions panel filed an order on behalf of the court

denying rehearing en banc of the motions panel’s April 17,

2018 published order authorizing the appointment of a special

prosecutor to provide briefing and argument to the merits

panel that will hear former Sheriff Joe Arpaio’s appeal from

the district court’s denial of his motion to vacate his

conviction for criminal contempt of court.

Concurring in the denial of rehearing en banc, Judge W.

Fletcher, joined by Judges Graber, Wardlaw, Gould, Paez,

and Christen, wrote to emphasize the limited role of the

special prosecutor and the legality of the order.

In a statement regarding the denial of rehearing en banc,

Judge Tashima wrote that he agrees with and fully supports

Judge W. Fletcher’s concurrence in the denial of rehearing en

banc.

Dissenting from the denial of reconsideration en banc,

Judge Callahan, joined by Judges Bybee, Bea, and Ikuta,

wrote that the panel should have stuck to the tried and true

solution of simply appointing amicus curiae to defend the

district court’s vacatur ruling in this situation in which the

Department of Justice agrees that the conviction should be

vacated. She wrote that the appointment of the special

prosecutor is ill-advised and unnecessary, constitutionally

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ARPAIO 3

infirm, and an unprecedented and unauthorized intrusion of

executive power. 

In a statement regarding the denial of rehearing en banc,

Judge Tallman wrote that he agrees with the views expressed

by Judge Callahan in her dissent from the denial of rehearing

en banc.

ORDER

A judge of the court sua sponte called for a vote on

whether to rehear en banc the published order in this case

dated April 17, 2018. A vote was taken, and a majority of the

non-recused active judges of the court failed to vote for en

banc rehearing. Fed. R. App. P. 35(f). Rehearing en banc is

DENIED.

W. FLETCHER, Circuit Judge, joined by GRABER,

WARDLAW, GOULD, PAEZ, and CHRISTEN, Circuit

Judges, concurring in the denial of rehearing en banc:

Former Sheriff Joe Arpaio has appealed to our court from

the district court’s denial of a motion to vacate his conviction

for criminal contempt of court. On April 17, 2018, a motions

panel of our court issued an order authorizing the

appointment of a “special prosecutor to provide briefing and

argument to the merits panel” 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 argument to the merits

panel.
4 UNITED STATES V. ARPAIO

A member of our court unsuccessfully sought en banc

rehearing and reversal of the order of the motions panel. 

Several judges 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 emphasize two things—the limited

role of the special prosecutor, and the legality of the order.

I. Limited Role of the Special Prosecutor

Arpaio violated an order of the district court. The United

States prosecuted Arpaio for criminal contempt of court and

obtained a conviction on July 31, 2017. President Trump

pardoned Arpaio on August 25, prior to sentencing by the

district court. Arpaio then moved to dismiss the prosecution

and to vacate the conviction. On October 19, 2017, the

district court granted Arpaio’s motion to dismiss the

prosecution but denied his motion to vacate the conviction. 

Arpaio appealed the denial.

On December 13, 2017, in response to an inquiry from

our court, the government wrote that it “does not intend to

defend the district court’s order from October 19, 2017 . . . ;

instead, the government intends to argue, as it did in the

district court, that the motion to vacate should have been

granted.” United States Statement at 2. The government took

“no position on whether the Court should appoint counsel to

make any additional arguments.” Id. The motions panel then

issued the order now at issue on April 17, 2018.

After the motions panel issued its order, the government

objected to the appointment of a private attorney as a special

prosecutor, reversing the position it had taken on December

13. The government wrote on June 22, 2018: “The

prosecution of crimes is a prerogative of the Executive
UNITED STATES V. ARPAIO 5

Branch, subject to a narrow exception for appointment of a

special prosecutor in contempt actions that is codified in

[Federal] Rule [of Criminal Procedure] 42. But the

appointment of a special prosecutor under the circumstances

of this case does not fit within that narrow exception, and thus

would intrude into an area that is constitutionally reserved for

the Executive.” United States Brief at 2.

The role of a private attorney appointed as 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 of a federal prosecutor, and the corresponding role of a

special prosecutor, is not limited to actions in the district

court. The role of a federal prosecutor is to initiate a

prosecution for contempt of court, to prosecute the case in the

district court, and, if a conviction is obtained, to defend the

conviction in the district court and the court of appeals.

In the case before us, the government was successful in

obtaining a conviction for criminal contempt of court. The

part of the prosecutor’s role that remains is defending on

appeal that successful result. The motions panel authorized

the appointment of a special prosecutor to perform that

function—to present in briefing, and by oral argument if

necessary, arguments in support of the district court’s denial

of Arpaio’s motion to vacate his conviction.

II. Legality of the Order

The dissenters characterize the order of the motions panel

as “constitutionally infirm” and as an “unprecedented—and

unauthorized—intrusion of executive power.” Diss. Op. at

13. This is incorrect.
6 UNITED STATES V. ARPAIO

The order of the motions panel was an exercise of judicial

rather than executive power. The order authorizes the

appointment of private counsel to assist the court in

evaluating the merits of an appeal, in a criminal contempt-ofcourt case, after the government has declined to perform that

function.

A. Rule 42

Federal Rule of Criminal Procedure 42 applies equally to

all federal courts in which a government or special prosecutor

would act—whether seeking and obtaining in district court a

conviction for criminal contempt, or defending in an appellate

court a conviction obtained in the district court. Federal Rule

of Criminal Procedure 1, provides:

These rules govern the procedure in all

criminal proceedings in the United States

district courts, the United States courts of

appeals, and the Supreme Court of the United

States.

FED. R. CRIM. P. 1(a)(1).

Federal Rule of Criminal Procedure 42(a)(2) authorizes

the appointment of a private attorney to prosecute criminal

contempt of court when the government declines that role. It

provides:

Appointing a Prosecutor: The court must

request that the contempt be prosecuted by an

attorney for the government, unless the

interest of justice requires the appointment of

another attorney. If the government declines
UNITED STATES V. ARPAIO 7

the request, the court must appoint another

attorney to prosecute the contempt.

FED. R. CRIM. P. 42(a)(2) (second emphasis added).

Rule 42(a)(2) is not itself the source of a federal court’s

authority to appoint a private attorney as a special prosecutor

to perform the role of a government attorney in prosecuting

a criminal contempt of court. Rather, it is an implementation

of a court’s pre-existing inherent authority to appoint a

special prosecutor when the government declines to

prosecute.

An earlier version of Rule 42 did not explicitly authorize

the appointment of a private attorney as a special prosecutor

to prosecute criminal contempt of court. The earlier Rule

provided only that notice be given to an alleged contemnor

that a government or private attorney had been appointed to

prosecute the contempt. In Young v. United States ex rel.

Vuitton, 481 U.S. 787, 793 (1987), the Second Circuit had

upheld a district court order appointing two private attorneys

as “special prosecutors” to prosecute a criminal contempt of

court. The Supreme Court struck down the appointment on

the ground that the two special prosecutors were not

disinterested, given that they represented one of the parties in

the underlying civil case. But the Court wrote at length to

uphold the right of the court to appoint a disinterested private

attorney as a special prosecutor.

The Court acknowledged that Rule 42, as then written,

did not explicitly authorize a court to appoint private

attorneys as special prosecutors. But it held that courts have

pre-existing inherent authority to make such appointments.
8 UNITED STATES V. ARPAIO

While it is true that Federal Rule of Criminal

Procedure 42(b) does not provide

authorization for the appointment of a private

attorney, it is long settled that courts possess

inherent authority to initiate contempt

proceedings for disobedience to their orders,

authority which necessarily encompasses the

ability to appoint a private attorney to

prosecute the contempt.

Id. (emphases added).

Rule 42 was amended in 2002 to add what is now Rule

42(a)(2). The Committee Notes cite Young and explain the

rationale for the amendment:

Revised Rule 42(a)(2) now explicitly

addresses the appointment of a “prosecutor”

and adopts language to reflect the holding in

Young v. United States ex rel. Vuitton,

481 U.S. 787 (1987). In that case the

Supreme Court indicated that ordinarily the

court should request that an attorney for the

government prosecute the contempt; only if

that request is denied, should the court appoint

a private prosecutor. The rule envisions that

a disinterested counsel should be appointed to

prosecute the contempt.

FED. R. CRIM. P. 42 Advisory Committee Notes to 2002

amendment.
UNITED STATES V. ARPAIO 9

B. Inherent Power

Rule 42 is rooted in the longstanding inherent power of

the judiciary to appoint disinterested private attorneys as

special prosecutors to pursue criminal contempt proceedings

in federal court when government prosecutors are unwilling

or unable to perform that function. The Court in Young made

clear that Rule 42 is rooted in an inherent judicial power that

exists independently of the Rule. Ordinary criminal

prosecutions are, of course, exercises of the executive power. 

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. The Court wrote in Young:

The Rule’s assumption that private attorneys

may be used to prosecute contempt actions

reflectsthe longstanding acknowledgment that

the initiation of contempt proceedings to

punish disobedience to court orders is a part

of the judicial function.

Young, 481 U.S. at 795 (emphasis added).

In the case before us, a government prosecutor sought and

obtained a conviction for criminal contempt in the district

court. The government then declined to defend the

conviction when Arpaio appealed the district court’s denial of

his motion for vacatur. The Court in Young instructs us what

to do in that circumstance:

If the Judiciarywere completely dependent on

the Executive Branch to redress direct affronts

to its authority, it would be powerless to
10 UNITED STATES V. ARPAIO

protect itself if that Branch declined

prosecution. The logic of this rationale is that

a court ordinarily should first request the

appropriate prosecuting authority to prosecute

contempt actions, and should appoint a private

prosecutor only if that request is denied. Such

a procedure ensures that the court will

exercise its inherent power of self-protection

only as a last resort.

Id. at 801.

Our court followed the procedure prescribed in Young.

We inquired whether the government would defend Arpaio’s

conviction on appeal. When the government responded that

it did not intend to do so, the motions panel issued an order

authorizing the appointment of a special prosecutor to

perform the prosecutorial functions that the government had

declined to perform. Such an appointment, as the Court’s

opinion in Young makes clear, is “part of the judicial

function,” enabling the judiciary “to protect itself if [the

Executive] Branch decline[s] prosecution.” Id. at 795, 801.

III. Our Dissenting Colleagues’ View

Our dissenting colleagues have a much narrower view of

Rule 42 and the judiciary’s inherent power. They concede, as

they must, that the judicial branch has the authority under

Rule 42 and its inherent power to “protect itself” if the

executive branch declines to provide that protection. They

also concede, as theymust, that a court’s authority under Rule

42 and its inherent power extends to the appointment of

private attorneys as special prosecutors to initiate proceedings

for criminal contempt of court.
UNITED STATES V. ARPAIO 11

However, our colleagues contend that a court’s authority

ends as soon as criminal contempt-of-court proceedings are

“initiated.” Diss. Op. at 17–18. They write, “Once a

contempt proceeding begins, the court’s authority is

vindicated and the court has no further stake in the matter.” 

Id. This cannot be right. Mere “initiation” of a criminal

contempt proceeding is hardly sufficient to protect the

integrity of the court. Actual prosecution of that contempt,

once initiated, is necessary. Defense of a conviction on

appeal is also necessary. That is, all of the normal functions

of a prosecutor are necessary if the judiciary is fully to

“protect itself” when the executive branch declines to provide

that protection.

* * *

The order of the motions panel authorized the

appointment of a special prosecutor under Rule 42 and its

inherent power. During the pendency of Arpaio’s appeal to

our court, the special prosecutor will continue the prosecution

for criminal contempt of court that the government has

abandoned.

Once the government declined to continue the prosecution

by defending Arpaio’s conviction on appeal, the motions

panel had no choice. Rule 42 specifies that if the government

declines to prosecute, “the court must appoint another

attorney to prosecute the contempt.” FED. R. CRIM. P.

42(a)(2) (emphasis added). As the Supreme Court wrote in

Young:

If the Judiciarywere completely dependent on

the Executive Branch to redress direct affronts

to its authority, it would be powerless to
12 UNITED STATES V. ARPAIO

protect itself if that Branch declined

prosecution.

481 U.S. at 801.

TASHIMA, Senior Circuit Judge, statement regarding denial

of rehearing en banc:

I agree with and fully support Judge Fletcher’s

concurrence in the denial of rehearing en banc.

CALLAHAN, Circuit Judge, with whom BYBEE, BEA, and

IKUTA, Circuit Judges, join, dissenting from denial of

reconsideration en banc:

The question before the motions panel was a simple one: 

Given that the Unites States Department of Justice agrees

with the appellant, Sheriff Arpaio, on the legal point that

Arpaio’s contempt conviction should be vacated, what should

the court do to ensure the merits panel receives briefing and

argument on both sides of the issue? The tried and true

solution is to appoint amicus curiae to provide such briefing. 

The panel majority, unsatisfied with having alreadyappointed

amici curiae who have ably briefed the merits, took the

unprecedented step of appointing a “special prosecutor” to

supplant the Department of Justice.

We should have reconsidered the majority’s decision en

banc. As Judge Tallman states in his dissent, the appointment

of a special prosecutor is “ill-advised and unnecessary.” 
UNITED STATES V. ARPAIO 13

The appointment is also constitutionally infirm. The

majority’s we-see-no-reason-why-not approach does not

justify its admittedly unprecedented—and unauthorized—

intrusion of executive power.

I

Judge G. Murray Snow (D. Ariz.) issued an order of

charges for criminal contempt against former Maricopa

County Sheriff Joseph M. Arpaio (and others), and requested

that the United States Attorney’s office prosecute Sheriff

Arpaio. The government accepted the request, and the Public

Integrity Section of the United States Department of Justice

successfully prosecuted Sheriff Arpaio in a bench trial

conducted by Judge Susan R. Bolton, obtaining a conviction

of criminal contempt on July 31, 2017. Before sentencing,

however, President Donald Trump pardoned Arpaio. Rather

than challenge the conviction, the sheriff accepted the pardon. 

He then moved to dismiss the action and to vacate the

conviction and all other orders in the case. The district court

granted the first request but denied the second. Arpaio

appeals from the denial of the motion to vacate.1

Non-parties who served as amici curiae in the district

court proceedings filed a motion requesting permission to

1 Sheriff Arpaio’s appeal is limited to the question of whether, in light

of the pardon, the district court should have vacated the conviction. No

one appealed the order dismissing the action. Our court denied a late-filed

request for the appointment of counsel to cross-appeal the dismissal on

behalf of the government because the time to appeal had expired.
14 UNITED STATES V. ARPAIO

participate as amici curiae in the appeal.

2 The motion also

asked the court “to appoint a private attorney” under Federal

Rule of Criminal Procedure 42 to defend the denial of the

request for vacatur “to ensure that this Court has the full set

of issues in this matter before it in an adversarial proceeding.” 

The court granted the motion in part, directed that the Clerk

file amici curiae’s proposed merits brief, which defends the

district court’s decision, and allowed amici to file a

supplemental merits brief.3

The motions panel also ordered the government to “file a

statement indicating whether it intends to enter an appearance

and file an answering brief in this appeal.” The order further

stated that if the government intended not to defend the

district court’s order denying the motion to vacate, the

government “shall also provide its position on whether this

court should appoint counsel to represent the government’s

interests on appeal and defend the district court’s order.” The

order did not indicate that the panel was considering

replacing the government with a “special prosecutor.”

The government responded that it “intends to represent

the government’s interests in this appeal.” The government

further stated that it “does not intend to defend the district

2 These amici include The Protect Democracy Project, Inc. (which is

represented by Perkins Coie LLP and Messing & Spector LLP), Free

Speech for People, The Coalition to Preserve, Protect and Defend, and the

Roderick and Solange MacArthur Justice Center (Northwestern Pritzker

School of Law).

3 Other non-parties, Erwin Chemerinsky, Michael E. Tigar, and Jane

B. Tigar (who are represented by Riordan & Horgan), have also sought

leave to file a brief as amici curiae and submitted a proposed brief

defending the district court’s denial of the request for vacatur.
UNITED STATES V. ARPAIO 15

court’s order from October 19, 2017 . . . ; instead, the

government intends to argue, as it did in the district court,

that the motion to vacate should have been granted. We take

no position on whether the Court should appoint counsel to

make any additional arguments.”

On April 17, 2018, over a dissent by Judge Tallman, the

motions panel issued its published order stating it “will

appoint a special prosecutor.” United States v. Arpaio,

887 F.3d 979, 980 (9th Cir. 2018). The panel acknowledged

the lack of any precedent for the court appointing a special

prosecutor in a proceeding with a similar posture. Id. at

981–82. The panel justified its unprecedented action by

stating, “[w]e see no reason whysuch 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, either pursuant to

Fed. R. Crim. P. 42(a)(2) or under its inherent authority, to

appoint a special prosecutor under the circumstances

presented by this case.” United States v. Arpaio, 891 F.3d

1130, 1130–31 (9th Cir. 2018). The parties and amici filed

supplemental briefs. The Department of Justice made clear

in its brief that it has no intent to cede its role as the

prosecutor who brought this action to a replacement special

prosecutor. The government argued that the court lacks the

power to appoint a special prosecutor, as opposed to amicus

counsel, at this stage of the proceedings.
16 UNITED STATES V. ARPAIO

II

A

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

extremely limited. Such an exercise of executive-like power

is authorized only when necessary to vindicate the court’s

own authority. See Young v. U.S. ex rel. Vuitton et Fils S.A.,

481 U.S. 787, 793–96, 800–01 (1987).

“The principle of separation of powers was not simply an

abstract generalization in the minds of the Framers: it was

woven into the document that they drafted in Philadelphia in

the summer of 1787.” Buckley v. Valeo, 424 U.S. 1, 124

(1976). “Each branch ‘exercise[s] . . . the powers appropriate

to its own department,’ and no branch can ‘encroach upon the

powers confided to the others.’” Patchak v. Zinke, 138 S. Ct.

897, 904–05 (2018) (alterations in original). The Supreme

Court has cautioned that each branch—including the

judiciary—must “resist[]” the inherent pressure “to exceed

the outer limits of its power, even to accomplish desirable

objectives.” I.N.S. v. Chadha, 462 U.S. 919, 951 (1983).

The judicial branch cannot take, or be given by another

branch, “executive . . . duties of a nonjudicial nature” where

such duties are not provided for in the Constitution. See

Buckley, 424 U.S. at 123. “The purpose of this limitation is

to help ensure the independence of the Judicial Branch and to

prevent the Judiciaryfrom encroachinginto areas reserved for

the other branches.” Morrison v. Olson, 487 U.S. 654,

677–78 (1988). The Supreme Court commands “vigilance”

against the “danger[]” of the judicial branch being “allowed

‘tasks that are more properly accomplished by [other]
UNITED STATES V. ARPAIO 17

branches.’” Mistretta v. United States, 488 U.S. 361, 383

(1989) (quoting Morrison, 487 U.S. at 680–81).

Although the Constitution squarely endows the executive

branch with the prosecutorial power, the Supreme Court has

recognized a limited judicial power to appoint a special

prosecutor to initiate criminal contempt proceedings. See

Young, 481 U.S. at 800–01. This inherent power is justified

by the judiciary’s need “to vindicate its own authoritywithout

complete dependence on other Branches.” Id. at 796. But

that doesn’t give courts carte blanche to exercise control over

this executive function whenever they “see no reason why”

not. See Arpaio, 887 F.3d at 982. Rather, “[t]he need to

vindicate a court’s authority is . . . satisfied by ensuring that

an alleged contemner will have to account for his or her

behavior in a legal proceeding, regardless of whether the

party is ultimately convicted or acquitted.” Young, 481 U.S.

at 796 n.8.

In other words, the need for the judiciary’s limited quasiexecutive power—and thus the power itself—is extinguished

once criminal contempt proceedings are initiated. The

Supreme Court repeated several times in Young that the

power of appointment is limited to the “initiation” of

contempt proceedings. See, e.g., Young, 481 U.S. at 793

(“[C]ourts possess inherent authority to initiate contempt

proceedings for disobedience to their orders.” (emphasis

added)); id. at 795 (“[T]he initiation of contempt proceedings

to punish disobedience to court orders is a part of the judicial

function.” (emphasis added)); id. at 796 (“Courts cannot be

at the mercy of another Branch in deciding whether such

proceedings should be initiated.” (emphasis added)); id. at

800–01 (“[C]ourts have long had . . . the authority to appoint

private attorneys to initiate such proceedings.” (emphasis
18 UNITED STATES V. ARPAIO

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

prosecution for criminal contempt.” (emphasis added)). Once

a contempt proceeding begins, the court’s authority is

vindicated and the court has no further stake in the matter. 

See id. at 796 n.8 (“A court’s ability to institute a contempt

proceeding is therefore essential to the vindication of its

authority in a way that the ability to determine guilt or

innocence is not.”).4

Additionally, although “a court has the authority to

initiate a prosecution for criminal contempt, its exercise of

that authority must be restrained by the principle that ‘only

“[t]he least possible power adequate to the end proposed”

should be used in contempt cases.’” Id. at 801 (quoting

United States v. Wilson, 421 U.S. 309, 319 (1975)) (alteration

in original). “This principle of restraint in contempt counsels

caution in the exercise of the power to appoint a private

prosecutor.” Id. Such power exists “only as a last resort,”

which means only if the court first asks the appropriate

prosecuting authority to initiate contempt proceedings and

that request is declined. Id.

B

The majority reaches two conclusions in support of its

decision to “appoint a special prosecutor.” First, while

acknowledging there is no precedent for expansion of the

4 Even if a court’s power to appoint a prosecutor is not extinguished

upon the initiation of criminal proceedings, such power certainly does not

survive past an unappealed conviction. In this regard, the posture of this

case is significant. Rather than challenge his conviction, Arpaio chose to

accept the Presidential pardon. The district court then properly dismissed

the case in light of the pardon. Arpaio does not appeal his conviction; he

appeals only the district court’s refusal to vacate its determination of guilt.
UNITED STATES V. ARPAIO 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 Federal Rule of Criminal Procedure

42.” Arpaio, 887 F.3d at 981. Second, the panel concludes

it “ha[s] inherent authority to appoint special counsel.” Id. at

982. Neither conclusion withstands scrutiny.

The majority’s assertion that Rule 42 empowers federal

judges to appoint a special prosecutor is simply wrong. The

Supreme Court stated in Young that Rule 42 “does not

provide authorization for the appointment of a private

attorney.” Young, 481 U.S. at 793; see id. at 794 (observing

that Rule 42 “does not itself purport to serve as authorization

for” the practice of appointing a special prosecutor). Rather,

such limited authority is inherent in the constitutional grant

of power to the judiciary, and Rule 42 merely refers to that

authority and “speaks only to the procedure for providing

notice of criminal contempt.” Id. at 793 (emphasis omitted). 

The Federal Rules of Criminal Procedure, as promulgated by

the Supreme Court under the Rules Enabling Act, could no

more grant Article III judges the power to appoint a

prosecutor to initiate criminal proceedings than the judicial

branch or legislative branch could unilaterally usurp some

purely executive function.

The only explanations offered for the majority’s asserted

power to appoint a special prosecutor is that the majority

“see[s] no reason why such an appointment should not take

place under Rule 42” and that the “operation” of Rule 42 “is

not confined to investigations and trials in the district court.” 
20 UNITED STATES V. ARPAIO

Id. at 981–82.5In seeing no reason to doubt its authority to

appoint a special prosecutor, the majority overlooks

constitutional constraints on the court’s power.

Curiously, the majority seeks to justify the appointment

of a special prosecutor by relying on the “longstanding

practice” of appointing a disinterested party to serve as

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 the obvious: appointment of a

special prosecutor as contemplated byRule 42 is not the same

thing as appointment of appellate counsel or amicus curiae

simply to brief and argue a case on appeal. A “special

prosecutor” is “[a] lawyer appointed to investigate and, if

justified, seek indictments in a particular case.” Prosecutor,

Black’s Law Dictionary (10th ed. 2014). In contrast, “amicus

curiae” is “[s]omeone who is not a party to a lawsuit but who

5

In asserting that the “operation” of Rule 42 is not confined to

activities in the district court, the panel fails to recognize the distinction

between a special prosecutor’s powers once appointed (which can

continue into an appeal) and the court’s power to appoint a special

prosecutor in the first instance on appeal. The majority cites no authority

stating that the judiciary’s power to appoint a special prosecutor is

coterminous with the hypothetical duration of the special prosecutor’s

power once appointed. Indeed, such a view is contrary to the Young

Court’s narrow construction of the judiciary’s power.

6 Amici’s attempt to defend the majority’s decision suffers from the

same defect. Tellingly, in their brief on the en banc question, amici

painstakingly avoid using the term “special prosecutor” other than when

quoting the panel’s order and recitingYoung’s holding that “courts possess

inherent authority to initiate contempt proceedings.” Instead, like the

panel, they seek to justify the order by asserting the undisputed

proposition that courts have the power to appoint amicus or appellate

counsel to defend a lower court’s judgment.
UNITED STATES V. ARPAIO 21

petitions the court or is requested by the court to file a brief

in the action because that person has a strong interest in the

subject matter.” Amicus Curiae, Black’s Law Dictionary

(10th ed. 2014). As the Department of Justice notes, “[t]he

distinction is important because, by its nature, counsel

appointed as amicus would be limited to defending the

judgment and could not claim any of the powers associated

with a special prosecutor.”7

Despite the clear distinction between a “special

prosecutor” on the one hand and “appellate counsel,”

“counsel,” or “amicus curiae” on the other hand, the majority

uses these distinct labels throughout its order as if they were

7 A special prosecutor’s powers are broad. A special prosecutor

appointed by the Attorney General under the former Ethics in Government

Act, and the regulations that replaced that Act when it expired in 1999, is

bestowed with “the full power and independent authority to exercise all

investigative and prosecutorial functions of any United States Attorney.” 

28 C.F.R. § 600.6; see also 28 U.S.C. § 594(a) (providing that a special

prosecutor’s powers include “conducting proceedings before grand juries

and other investigations,” “making applications to any Federal court . . .

for warrants, subpoenas, or other court orders,” and “initiating and

conducting prosecutions in any court of competent jurisdiction, framing

and signing indictments, filing informations, and handling all aspects of

any cases, in the name of the United States”). A special prosecutor

appointed under Rule 42 to prosecute contempt necessarily has the same,

or at least similar, prosecutorial powers. And just as we have no ability

to expand or to restrict the United States Attorney’s prosecutorial powers,

we are powerless to exercise control over the prosecutorial function of a

special prosecutor appointed to represent the government. Here, of

course, the movants wish the special prosecutor to take a position in

litigation that the district court properly denied Arpaio’s motion to vacate

the fact of his conviction. That is directly opposite to the position taken

by the United States. The panel does not tell us who will resolve such

conflicts between the special prosecutor and the United States Department

of Justice.
22 UNITED STATES V. ARPAIO

interchangeable.8 The majority’s citation to Lucia v. SEC,

138 S. Ct. 923 (2018), is ironic. See Arpaio, 887 F.3d at 982. 

In that case, the Supreme Court invited a particular attorney

“to brief and argue this case, as amicus curiae, in support of

the judgment below.” Lucia, 138 S. Ct. 923. Like in Lucia,

the panel’s prior appointment of amici is all that is needed

here. Yet the majority eschews the Supreme Court’s

approach, instead somehow finding in Lucia’s singlesentence appointment of amicus curiae support for the

appointment of a special prosecutor to displace the

Department of Justice.

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.

C

The appointment of a special prosecutor is completely

unnecessary.

First, the United States did not decline the district court’s

request to prosecute Sheriff Arpaio for contempt. The district

court’s authority was vindicated when the government

initiated contempt proceedings. Although the district court

8

See Arpaio, 887 F.3d at 981 (“we will appoint a special

prosecutor”); id. (“unless we appoint a special prosecutor”); id. (“we have

the authority to appoint counsel under [Rule 42”]); id. at 982 (“we have

inherent authority to appoint a special counsel”); id. (“inherent authority

to appoint disinterested counsel”); id. (“inherent judicial power to appoint

appellate counsel”); id. (“inherent authority to appoint an amicus”).
UNITED STATES V. ARPAIO 23

had no stake in the outcome of those proceedings, the result

was in fact a conviction.

Second, the majority’s sole stated purpose in the

appointment—to allow the merits panel the benefit of full

briefing and argument—does not require or justify the

appointment of a special prosecutor. The court’s only interest

in this litigation is to have the issues raised on appeal fully

briefed and argued, and that purpose is achieved by the court

exercising its undisputed authority to appoint amicus curiae. 

Accordingly, even if the government’s position that the

district court is in error would otherwise result in uneven

briefing, the easy solution is the non-controversial

appointment of amici to brief the issues.9

Indeed, the majority’s assertion that the merits panel “will

not receive the benefit of full briefing and argument” absent

appointment of a special prosecutor is perplexing in light of

the panel’s prior order granting various groups leave to serve

as amici and directing that the Clerk file amici’s proposed

brief. Given the obvious option of appointing amicus curiae,

perhaps even more perplexing is our concurring colleagues’

9 Confession of error by the government does not relieve the court “of

the performance of the judicial function.” Sibron v. New York, 392 U.S.

40, 58 (1968); Young v. United States, 315 U.S. 257, 258–59 (1942)

(“[O]ur judicial obligations compel us to examine independentlythe errors

confessed.”). As stated in the Fourth Circuit case cited by the majority,

“the Court commonly appoints an amicus”—not a special

prosecutor—when the government confesses error in the lower court’s

judgment. See Arpaio, 887 F.3d at 982 (quoting United States v. Brainer,

691 F.3d 691, 693 (4th Cir. 1982)).
24 UNITED STATES V. ARPAIO

suggestion that the motions panel had “no choice” but to

appoint a special prosecutor. Conc. Op. at 11.10

A cursory review of amici’s merits brief (prepared by

highly esteemed counsel) confirms that amici vigorously

defend the district court’s decision. Amici will also be able

to respond to the appellant’s opening brief because the panel

expressly authorized them to “file a supplemental brief

addressing the merits of this appeal.” Additional proposed

amici have filed a separate proposed merits brief that likewise

heartily defends the district court.

Even though the court has received merits briefs on both

sides of the only issue in this appeal, the panel majority

maintains that it is compelled to appoint a special prosecutor

to supplant the DOJ. Will the merits panel’s consideration of

the issue somehow be limited because amici do not have

prosecutorial powers in presenting the case for affirmance?

No. Will the merits panel’s decision regarding vacatur

somehow be devoid of effect if rendered without the presence

of a “special prosecutor” in the case? No. On top of our

unflagging duty to follow the law in deciding the appeal on

its merits (as in all cases), do we have some additional

interest in arriving at a particular result or seeing to the

punishment of Arpaio? Of course not.

10 The concurrence makes this assertion without even attempting to

explain why the appointment of amicus curiae is inadequate to serve the

majority’s sole purpose of “provid[ing] briefing and argument to the

merits panel.” Arpaio, 887 F.3d at 980. We appoint amici all the time to

“assist the court in evaluating the merits of an appeal.” See Conc. Op. at

6.
UNITED STATES V. ARPAIO 25

Nothing about our court resolving this case based on the

briefing of the parties and amici either threatens to render the

district court that issued the injunction against 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

If simply appointing amici to present a brief and argument

would have done the trick, why encroach (or even risk

encroaching) on the executive branch’s prerogative by

appointing a special prosecutor?

It is now the law of this circuit—which covers nearly 20%

of the nation’s population—that a judge may, in the name of

getting “full briefing,” appoint a special prosecutor to replace

the United States Department of Justice provided the judge

“see[s] no reason why” not. Arpaio, 887 F.3d at 982. And

the judge may do this even though the federal prosecutor

initiates the criminal action, obtains a conviction, and fully

intends to represent the government’s interests throughout the

proceedings. Under the majority’s rationale, a judge could

appoint a special prosecutor when he or she simply disagrees

with the prosecution strategy or litigation position and thus

declares that the United States has abandoned the case.

The combination of the majority’s holding being

unprecedented and so obviously unnecessary to the panel’s

stated purpose (i.e., to brief the merits of the appeal) will

serve only to undermine public confidence in the merits

panel’s ultimate decision—whatever it decides. And it isn’t

difficult to anticipate the mischief that is sure to result from
26 UNITED STATES V. ARPAIO

such an unreasoned application of the judiciary’s power to

appoint a special prosecutor. Justice Scalia offered a

prophetic warning in his concurring opinion in Young:

In light of the broad sweep of modern judicial

decrees, which have the binding effect of laws

for those to whom they apply, the notion of

judges’ in effect making the laws, prosecuting

their violation, and sitting in judgment of

those prosecutions, summons forth much

more vividly than [the Supreme Court in

Anderson v. Dunn, 6 Wheat. 204 (1821)]

could ever have imagined the prospect of “the

most tyrannical licentiousness.”

Young, 481 U.S. at 822 (Scalia, J., concurring) (quoting

Anderson, 6 Wheat. at 228). Perhaps Justice Scalia was right

all along that “federal courts have no power to prosecute

contemners for disobedience of court judgments, and no

derivate power to appoint an attorney to conduct contempt

prosecutions.” Id. at 825 (Scalia, J., concurring).

While Sheriff Arpaio and the Chief Executive who

pardoned him have evoked strong feelings from those with

opposing political views, we abandon our role as impartial

jurists by “wading into that [political] thicket,” effectively

firing the United States’ attorneys, and appointing a special

prosecutor in their stead. See Arpaio, 887 F.3d at 986

(Tallman, J., dissenting).

III

The executive branch’s role is to prosecute. Our role is to

adjudicate. When we close our eyes to the constitutional
UNITED STATES V. ARPAIO 27

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. The prosecutors here intend to do

their job—we should let them and worry about doing our own

job.

The panel should have stuck to the tried and true solution

of simply appointing amicus curiae to defend the district

court’s vacatur ruling. The prior appointment of amici is

more than adequate to achieve the panel’s sole stated purpose

of getting briefing and argument for the merits panel. And,

unlike the appointment of a special prosecutor, such an

appointment doesn’t run afoul of the Constitution’s

separation of powers.

I respectfully dissent from the denial of reconsideration

en banc.

TALLMAN, Senior Circuit Judge, statement regarding denial

of rehearing en banc:

I agree with the views expressed by Judge Callahan in her

dissent from the denial of rehearing en banc.