A group of legal experts and advocates, including Protect Democracy; Free Speech for People; the Coalition to Preserve, Protect, and Defend; and the Roderick and Solange MacArthur Justice Center today asked the U.S. Court of Appeals for the Ninth Circuit to appoint a private attorney to challenge the Arpaio pardon in the appeals court so that the appeals court can consider the constitutionality of President Trump’s pardon through a full adversarial process.
The groups argue that because the Department of Justice has dropped its prosecution of Arpaio, the Federal Rules of Criminal Procedure require the courts to appoint a private attorney to take up the prosecution, which in this case would involve challenging the validity of the pardon.
Arpaio has separately also asked the Ninth Circuit to consider his case. In the District Court, he sought to have his conviction vacated. When the District Court rejected that request, he filed a notice of appeal on October 19. The groups asking the Ninth Circuit to review the pardon itself agree with Arpaio that that the Ninth Circuit should take up this case.
Today’s filing explains that the Federal Rules require the appointment of a private attorney to ensure the Court of Appeals has a full adversarial presentation on all relevant questions, including whether the Arpaio pardon is invalid in light of its conflict with other provisions of the Constitution, from the Due Process Clause to separation of powers provisions. As the brief filed today explains, a private attorney must be appointed under Rule 42 of the Federal Rules of Criminal Procedure when, as here, the Justice Department has declined to pursue a criminal contempt charge. The brief argues this is all the more important given the high stakes of this case for the integrity of the judiciary.
The groups seeking review in the Ninth Circuit previously argued to the District Court both that the pardon is unconstitutional and that litigating those questions requires appointment of a Rule 42 private attorney, given that the Department of Justice has abandoned the case in deference to President Trump.
Ian Bassin, Executive Director of Protect Democracy, stated:
“We agree with Sheriff Arpaio that the Ninth Circuit should look closely at this case, including the way his actions and President Trump’s pardon have trampled the Constitution. With the President behaving more like an authoritarian every day, the stakes could not be higher and the American people are counting on the courts to do what they’ve done for more than two centuries and nothing more: say what the law is.”