Former Maricopa County Sheriff Joe Arpaio filed a petition at the U.S. Supreme Court on Wednesday to overturn the 9th U.S. Circuit of Appeals’ appointment of a special prosecutor tasked with making the case to limit the scope of the pardon he received from President Donald Trump.
In August 2017, Trump pardoned Arpaio of a misdemeanor contempt of court charge stemming from a class action suit brought by the American Civil Liberties Union. A federal district court ruled in that 2013 case the sheriff’s deputies were discriminating against Hispanics by considering their race as a factor in deciding whether to inquire about their immigration status during traffic stops.
Days before pardoning Arpaio, Trump suggested at a rally in Phoenix that the lawman had been unfairly treated, including being denied a trial by jury in the contempt proceedings.
“Was Sheriff Joe convicted for doing his job? He should have had a jury,” the president said, according to The Arizona Republic.
Obama Justice Department prosecutors had filed a misdemeanor contempt of court charge against Arpaio in October 2016 — thus bypassing the requirement for a jury trial — as Arizonans were voting by mail in his bid for a 7th term as Maricopa County Sheriff.
U.S. District Court Judge Susan Bolton, a Clinton appointee, ruled against Arpaio’s request for a jury trial the following spring and found him guilty of contempt in July 2017.
Weeks later, Trump announced Arpaio’s pardon via Twitter, calling him an “American patriot,” and adding that he “kept Arizona safe!” Arpaio, then 85 years old, was the president’s first pardon.
I am pleased to inform you that I have just granted a full Pardon to 85 year old American patriot Sheriff Joe Arpaio. He kept Arizona safe!
— Donald J. Trump (@realDonaldTrump) August 26, 2017
However, Bolton refused to vacate Arpaio’s conviction in October 2017, ruling Trump’s pardon only related to the former sheriff’s sentence, not his criminal record, The Republic reported.
Arpaio has appealed the ruling to the 9th Circuit where DOJ prosecutors sided with him, saying the pardon applies both to his criminal record and the sentence.
In a highly unusual move, a three judge panel at the 9th Circuit decided to appoint a special prosecutor, saying the DOJ in effect had “abandoned” its duties in the case, according to The Republic.
That decision was upheld by a 12 judge 9th Circuit panel in April, Politico reported.
Arpaio sees the 9th Circuit’s ruling as another example of the court playing politics.
“President Trump is right: the 9th Circuit is a political disaster,” Arpaio told The Western Journal. “Look at my case. Democrat judges appointed their own prosecutor, which we feel is illegal.”
Jack Wilenchik, Arpaio’s attorney, said that the ruling against his client was seven judges to five. He noted all seven finding against Arpaio are Democrat appointees, while four of the five that dissented were appointed by Republicans.
“So five of them said, ‘No this is clearly illegal. Judges do not have the power to replace prosecutors because they think the court is wrong. It’s a separation of powers issue,'” Wilenchik stated.
“The DOJ actually agreed with us that the conviction should be vacated,” he pointed out, “because that is clearly the state of the law.”
In his petition to the Supreme Court, Wilenchik argued, “The (9th Circuit) 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.”
He further contended such a move “gives a constitutionally-intolerable appearance of bias by actively involving the court in the ongoing prosecution of a case.”
The attorney also chided the 9th Circuit’s conclusion that the DOJ “abandoned” the appeal, simply because it found Bolton’s ruling at the trial level in error.
“The (9th Circuit) shows a fundamental misunderstanding of what a prosecutor’s function is,” Wilenchik wrote. “It is not to ‘defend’ court orders, or to disagree with the defendant, or even to obtain and uphold a conviction at all costs.
“The function of a prosecutor is to represent the interest of the United States; and the interest of the United States is ‘not that it shall win a case, but that justice shall be done.’”
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