A federal appeals court judge is challenging his colleagues' decision to appoint a special prosecutor to defend a district court judge's handling of a pardon President Donald Trump issued last year to former Arizona Sheriff Joe Arpaio on a contempt-of-court charge.
An unidentified member of the 9th Circuit Court of Appeals objected to a split appeals court panel's decision in April to use the special prosecutor mechanism in the review of Phoenix-based U.S. District Court Judge Susan Bolton's ruling, Chief 9th Circuit Judge Sidney Thomas said in an order Friday.
Bolton concluded that Trump's pardon did not wipe out the guilty verdict in the case, even though the president's move did spare Arpaio of jail time or a fine. Arpaio appealed that decision, seeking to have the guilty verdict vacated. Typically, the Justice Department would argue against the defendant's appeal in a criminal case, but it declined to do so.
Senior Judge Richard Tallman dissented from the 2-1 April order calling for the appointment of a special prosecutor to argue Bolton had the authority to refuse to vacate the guilty verdict.
"I fear the majority’s decision will be viewed as judicial imprimatur of the special prosecutor to make inappropriate, unrelated, and undoubtedly political attacks on Presidential authority. We should not be wading into that thicket," Tallman wrote.
The two judges who backed naming a special prosecutor to argue against Arpaio, Wallace Tashima and William Fletcher, said such an appointment was permitted by federal court rules and is equivalent to the Supreme Court's frequent practice of naming esteemed attorneys to argue legal positions parties in a case are refusing to advance.
It's unclear if Tallman is the judge who asked the full bench of the 9th Circuit to consider reversing the ruling. He recently took senior status. A staffer in his chambers said he was not in Friday. A 9th Circuit spokesman did not immediately respond to a query on the point.
In the new order Friday, Thomas called on the parties to file briefs on the appeals court's authority to name an outside attorney to argue against Arpaio's appeal. The chief judge also invited outside groups and individuals to file briefs on the question. He set a June 22 deadline for the submissions.
Tashima, Fletcher, Tallman, Thomas and Bolton were all appointed by President Bill Clinton.