Sunday, April 22, 2018

Case o' The Week: Of Strange Bedfellows and Special Prosecutors - Arpaio and Special Prosecutors on Appeal

  A convicted criminal shown below just lost in the Ninth.

United States v. Arpaio, 2018 WL 1802117 (9th Cir. April 17, 2018) (Ord.), order available here.

Players: Order by Judges Tashima and Fletcher, dissent by Judge Tallman.

Facts: Arizona Sheriff Arpaio was convicted of criminal contempt. Id. at *1; see generally NPR article here. He was pardoned by President Trump. 2018 WL 1802117, at *1.
  “Sheriff Arpaio then moved the district court for two forms of relief. First, Sheriff Arpaio moved “to dismiss this matter with prejudice.” Second, Sheriff Arpaio asked the district court “to vacate the verdict and all other orders in this matter, as well as the Sentencing . . .” Id.
  The district court granted the first motion: the case was dismissed with prejudice. Id. The district court “denied vacatur and refused to grant ‘relief beyond dismissal with prejudice.’” Id.
  Arpaio immediately appealed.
  When pressed for its position on appeal by the Ninth, the government “responded that it “does not intend to defend the district court's order . . . . ; instead, the government intends to argue, as it did in the district court, that the motion to vacate should have been granted.” Id. at *2.
  Amici sought the appointment of a Special Prosecutor.

Issue(s): “We address only the question of whether to appoint a special prosecutor to defend the district court's decision in light of the United States’ letter informing this Court that ‘[t]he government does not intend to defend the district court's order.’” Id. at *1.

Held: “[W]e will appoint a special prosecutor to provide briefing and argument to the merits panel.” Id.

Of Note: The panel majority characterizes this as a straightforward appointment under Federal Rule of Criminal Procedure 42(a)(2). That rule allows the Court to appoint a Special Prosecutor in contempt cases, when the government is involved in the allegations or otherwise cannot litigate the case. Id. at *2.
  Dissenting Judge Tallman isn’t so sure. He notes that Amici seeking the Special Prosecutor were counsel for President Trump’s opponent, Hilary Clinton. Id. at *4 & n.1. Judge Tallman also argues that the government hasn’t actually abandoned the case: it successfully secured a conviction, and now takes the position that Arpaio's vacutur motion is appropriate after the Presidential pardon. Id.
  It is an interesting dissent, but all three jurists studiously avoid the elephant in the room: there isn’t one “government.” One Administration prosecuted this case and secured a conviction; the next Administration pardoned the convicted defendant (and its DOJ supported a vacutur). 
  Should the Courts be the Constant when the Feds are so Variable? In this 2-1 Order, the Ninth seems to think so. 
How to Use: The next time your indigent CJA client receives a Presidential pardon, make sure that you’ve dodged a Circuit-appointed Special Prosecutor before popping the champagne
For Further Reading: How do we in the defense bar feel about the Ninth Circuit wading in and appointing a Special Prosecutor, to move forward with a case that the government thinks should be resolved with a vacutur?
  Or, turning to another case in the news, how do we feel about the FBI raiding an attorney’s office, with mountains of privileged information snagged by the Feds? Are we turning a blind eye to troubling events, because we dislike the subjects of these efforts?
  Alan Dershowitz says, “yes.” See Targeting Trump’s Lawyer Should Worry Us All, available here.  (“Civil libertarians should be concerned whenever the government interferes with the lawyer-client relationship. Clients should be able to rely on confidentiality when they disclose their most intimate secrets in an effort to secure their legal rights. A highly publicized raid on the president’s lawyer will surely shake the confidence of many clients in promises of confidentiality by their lawyers. They will not necessarily understand the nuances of the confidentiality rules and their exceptions. They will see a lawyer’s office being raided and all his files seized.
   I believe we would have been hearing more from civil libertarians — the American Civil Liberties Union, attorney groups and privacy advocates — if the raid had been on Hillary Clinton’s lawyer. Many civil libertarians have remained silent about potential violations of President Trump’s rights because they strongly disapprove of him and his policies. That is a serious mistake, because these violations establish precedents that lie around like loaded guns capable of being aimed at other targets.”)
  Every generation faces its own Skokie . . . .

Image of "When the Nazis Came to Skokie" from

Steven Kalar, Senior Litigator, N.D. Cal. Website at


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