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9th Circuit Order for a Private Attorney in Arpaio Pardon Appeal

The U.S. Court of Appeals for the 9th Circuit issued an order appointing a private attorney in the appeals case of Joe Arpaio under Federal Rule of Criminal Procedure Rule 42.  Following this ruling, the challenge to the constitutionality of Mr. Arpaio’s pardon will continue.

The order follows a request from Protect Democracy; Free Speech for People; the Coalition to Preserve, Protect and Defend; and the Roderick and Solange MacArthur Justice Center seeking the appointment of this attorney.

Mr. Arpaio was convicted for contempt of court for violating court orders protecting the constitutional rights of private litigants.  After President Trump pardoned Mr. Arpaio in August 2017, Mr. Arpaio sought to use the pardon as a basis to vacate his conviction. We filed a brief arguing that the pardon exceeded the President’s constitutional authority and was therefore invalid.  The District Court rejected Mr. Arpaio’s motion to vacate his conviction, and Mr. Arpaio appealed. Because the Justice Department abandoned its prosecution in this case, we asked the 9th Circuit to appoint an attorney under Federal Rule of Criminal Procedure 42 to oppose Mr. Arpaio’s appeal.

The order from the 9th circuit today says the court will appoint a private attorney “to provide briefing and argument” on the appeal.   

STATEMENT OF PROTECT DEMOCRACY LEGAL DIRECTOR JUSTIN FLORENCE

“The importance of an independent judiciary in upholding people’s constitutional rights cannot be overstated. The Court’s order appointing a private attorney ensures that there will be an argument in the Ninth Circuit on whether Arpaio’s conviction should be vacated because of the pardon.  The DOJ’s abdication of its responsibility cannot take this decision away from the courts.

As we and other amici have argued, the court can only resolve this appeal after assessing whether the pardon was constitutional. This pardon infringes on the constitutional rights of private litigants and the power of courts to uphold the Constitution, and so is outside the President’s constitutional authority.”  

STATEMENT OF FREE SPEECH FOR PEOPLE SENIOR COUNSEL SHANNA CLEVELAND

“The appointment of a private attorney in the Arpaio appeal is a critical win in the fight to secure an independent judiciary and ensure the Ninth Circuit will have an opportunity to be fully briefed on the serious constitutional questions raised by the President’s unprecedented use of the pardon power,”

STATEMENT OF COALITION TO PROTECT, PRESERVE, & DEFEND CO-FOUNDER DENNIS AFTERGUT

“A signature legal issue of the Trump era may well be the outer limits of the pardon power. The Ninth Circuit has ensured that this critically important issue gets a fair hearing.”

STATEMENT OF MACARTHUR JUSTICE CENTER, NORTHWESTERN PRITZKER SCHOOL OF LAW DIRECTOR OF APPELLATE LITIGATION DAVID SHAPIRO

“Arpaio, a disgraced lawman turned criminal, fully deserves the verdict of guilt to stand. The court decided that a special prosecutor needs to step in because the Trump DOJ is shirking its duty to represent the United States and defend the verdict.”

STATEMENT OF FORMER CONGRESSMAN BRAD MILLER

“No one should think that it’s safe to ignore court orders with a nod from the President. The decision today will assure that the appeals court hears both sides of the argument on the necessary powers of the judiciary.”

STATEMENT OF CONGRESSMAN JERRY NADLER

“Sheriff Joe Arpaio willfully ignored a valid court order compelling him to stop regularly and flagrantly violating the rights of thousands of people, and he was rightfully convicted of a crime.  President Trump’s outrageous pardon of him was a gross abuse of power, yet the Justice Department refused to defend the rule of law when the pardon was challenged in court. The 9th Circuit made a wise decision by ruling that those who believe Sheriff Arpaio cannot evade responsibility for his actions will rightly have their views fully represented in court.”