Former Maricopa County Sheriff Joe Arpaio’s attempt to expunge a 2017 conviction for contempt of court just became much more difficult. The U.S. Supreme Court ruled on Monday to reject the 86-year-old’s bid to stop a lower court’s appointment of a special prosecutor in his ongoing contempt case.
“The lower court has no power to replace the Department of Justice as prosecutors for the United States in a criminal case — including, if not particularly in, a prosecution for contempt of court,” Arpaio’s lawyers argued.
The Supreme Court disagreed, although a vote count or reason for the ruling was not disclosed.
Pardoned — but not exonerated
In July 2017, a federal judge found that officers in Maricopa County were regularly detaining Latinos for the sole purpose of determining their citizenship status. Arpaio was slapped with a contempt of court charge when he refused to obey a court-ordered injunction bringing an end to the controversial practice.
Praising Arpaio’s “fifty years of admirable service to our Nation,” Trump pardoned the career law enforcement official just two months later. Although the presidential order protects Arpaio from prison time or further prosecution related to the conviction, it does not expunge the offense from his record.
The ex-sheriff, infamous for the harsh living conditions he imposed in Arizona’s prisons, unsuccessfully petitioned a district court in Arizona to vacate his contempt charges. Arpaio appealed after the district court denied his petition, prompting the San Francisco-based 9th Circuit Court of Appeals to take the case.
At this point, DOJ prosecutors decided not to defend the Arizona court’s order, which should have allowed Arpaio to expunge his record. However, in an unusual turn of events, the 9th Circuit installed special prosecutor Christopher Caldwell to defend the criminal contempt order.
Arpaio’s lawyers argue that the 9th Circuit “has no power to replace the Department of Justice as prosecutors for the United States in a criminal case.” Furthermore, his attorneys claim that the lower court’s order “effectively sends the signal that if prosecutors act in the furtherance of justice, and concede error by the court, then they will be replaced.”
Caldwell “will be inherently biased in favor of defending the court’s orders — because he knows that if he does not, he will be replaced as well,” Arpaio’s Supreme Court petition reads.
Turncoat attorneys
The DOJ, once supportive of Arpaio, turned on the sheriff once his case reached the Supreme Court. Solicitor General Noel Francisco, who represents the Trump administration in cases before the high court, filed legal briefs asking the court to reject Arpaio’s petition.
Although Francisco agrees that the 9th Circuit lacks the authority to install a special prosecutor, he argued that the special counsel does not actually have the power to act like a conventional prosecutor. According to the DOJ’s position, Caldwell would only have the powers of an “amicus curiae,” or “friend of the court,” and would be limited to filing legal briefs and arguing in hearings before the circuit court.
“The order appointing the special prosecutor can be read to authorize the appointment of counsel with a role and authorities that are functionally equivalent to those of a court-appointed amicus curiae,” Francisco explained in a legal briefing.
“So construed, the order would avoid the serious constitutional concerns posed by a more broadly empowered special prosecutor,” he concluded.
Arpaio’s legal battles will continue. With the Supreme Court’s holding, the veteran lawman’s case will return to the 9th Circuit.
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