Agency: Court can’t appoint prosecutor against Arpaio

PHOENIX — The U.S. Justice Department says an appeals court overstepped its bounds when it ordered the appointment of a special prosecutor to pursue an appeal involving a pardon of retired Arizona Sheriff Joe Arpaio.

The appointment was previously ordered by a three-judge panel of the 9th Circuit Court of Appeals.

It came after the Justice Department declined to defend a ruling that dismissed Arpaio’s case but didn’t erase his criminal record after he was pardoned by President Donald Trump.

Lawyers are now making arguments over whether the request for a special prosecutor should be heard by a larger panel of the appeals court. The Justice Department argued in a June 22 brief that the appeals court lacks the power to appoint a special prosecutor at this stage in the litigation.

Lawyers for the Justice Department won the conviction against Arpaio for intentionally disobeying a 2011 court order that barred his traffic patrols that targeted immigrants.

But, once the pardon was issued, the federal agency sided with Arpaio in arguing that the conviction should be expunged because he was pardoned before the conviction became final.

The Justice Department said in its appellate brief that “the government does not abdicate the prosecutorial function when it agrees with a defendant on a legal question.”

Arpaio’s attorneys argued that appointing a special prosecutor “raises serious questions about whether the court is actively participating in the prosecution.”

Arpaio, now a candidate for a U.S. Senate seat, is appealing the lower-court ruling that refused to expunge his criminal record.

Legal advocacy groups that focus on free speech, democracy and civil rights asked for the prosecutor and have mounted a challenge to Trump’s pardon of the former six-term sheriff.

One group consisting of 11 Democratic members of Congress said in a brief that the pardon encroached on the independence of the courts.

“The administration has sought to squelch any legal challenge to the president’s pardon at issue and to claim for itself the role of final arbiter of the president’s powers,” attorneys for the Democrats wrote.

A month ago, Arpaio asked the Justice Department to investigate his claim that the agency meddled in his unsuccessful 2016 campaign for sheriff in metro Phoenix. The agency hasn’t yet said whether it would conduct such an investigation.