Late last night, Free Speech For People and allies filed papers in federal court in Arizona requesting that Judge Susan Bolton appoint an outside special prosecutor (known as a “private attorney”) to complete the prosecution of former Sheriff Joe Arpaio for contempt of court. The legal request comes after at least four different friend of the court briefs were filed before Judge Bolton yesterday arguing that President Trump’s pardon of Arpaio is unconstitutional. (For Free Speech For People’s brief, filed with Professor Martin Redish and the Coalition to Preserve, Protect, and Defend, see here.)
The request for a private attorney argues that the court should appoint such an attorney after the Department of Justice (DOJ) earlier in the day ceased its prosecution of Arpaio in light of President Trump’s pardon. Appointment of a private attorney would allow the court to use the adversarial process to rule on the substantial constitutional questions raised by the President’s unprecedented pardon of Mr. Arpaio.
The full request for a private attorney can be found here.
Besides Free Speech For People, the groups supporting the request include: Coalition to Preserve, Protect and Defend; Protect Democracy; Professor Martin Redish; and Roderick and Solange MacArthur Justice Center.
Last month, Free Speech For People, along with Protect Democracy, wrote a letter to DOJ explaining why President Trump’s pardon violates the Constitution and asking the Department to oppose the pardon in court. Yesterday, the Department declined to do that. Instead, DOJ told the court it agrees with a request made by Arpaio that his conviction should be vacated as a result of the pardon—a legal measure that, if granted, would erase the record that the conviction had ever happened to begin with.
In the papers filed last night, we explain that according to the Federal Rules of Criminal Procedure that govern these proceedings, when DOJ declines to prosecute a contempt matter referred to it by the courts, “the court must appoint another attorney to prosecute the contempt.”
Judge Bolton has scheduled a hearing for October 4, 2017.