The 2-1 decision yesterday comes after 3 1/2 months of considering the matter, which was raised by amici after the Department of Justice had declined to do battle with Arpaio at the end of the District Court criminal contempt case, and after Arpaio had appealed the decision that the pardon did not vacate Judge Bolton's findings that the former Sheriff was guilty of contempt.
The majority said that it is following a line of U.S. Supreme Court cases that authorize appointing private counsel when there has been a political change that has prompted prosecutors to rethink their position. In November, the Court asked the parties for their positions on a special counsel; the Justice Department said it would not defend Bolton's order and said "we take no position on whether
the Court should appoint counsel to make any additional arguments."
Arpaio's attorneys argued strongly against special counsel, telling the court it "simply smacks of the worst kind of prejudice."
Reached today by Arizona's Politics, Arpaio co-counsel Jack Wilenchik elaborated:
The idea that the Ninth Circuit can appoint “another” prosecutor to a criminal case, just because the actual prosecutors agree with the defendant and the law is clearly on his side, is deeply disturbing. But unfortunately it is nothing new in this case, which has been a battle from day one between the law and deep-seated judicial prejudice.Dissenting Judge Richard Tallman agreed, and noted that Arpaio had admitted guilt when he accepted the pardon.
Arpaio effectively conceded his guilt by accepting the pardon, and there is no need for more investigation, presentation of evidence, or further proceedings to determine if the equitable relief of vacatur is appropriate.
Attorney Paul Weich contributed to this report.
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