                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 17-10448
           Plaintiff-Appellee,
                                          D.C. No.
              v.                    2:16-cr-01012-SRB-1

JOSEPH M. ARPAIO, Sheriff,
        Defendant-Appellant.                ORDER


                   Filed October 10, 2018

   Before: A. Wallace Tashima, William A. Fletcher,
       and Richard C. Tallman, Circuit Judges.

                       Order;
          Concurrence by Judge W. Fletcher;
            Statement by Judge Tashima;
             Dissent by Judge Callahan;
            Statement by Judge Tallman
2                   UNITED STATES V. ARPAIO

                            SUMMARY*


               Appointment of Special Counsel

   A motions panel filed an order on behalf of the court
denying rehearing en banc of the motions panel’s April 17,
2018 published order authorizing the appointment of a special
prosecutor to provide briefing and argument to the merits
panel that will hear former Sheriff Joe Arpaio’s appeal from
the district court’s denial of his motion to vacate his
conviction for criminal contempt of court.

    Concurring in the denial of rehearing en banc, Judge W.
Fletcher, joined by Judges Graber, Wardlaw, Gould, Paez,
and Christen, wrote to emphasize the limited role of the
special prosecutor and the legality of the order.

   In a statement regarding the denial of rehearing en banc,
Judge Tashima wrote that he agrees with and fully supports
Judge W. Fletcher’s concurrence in the denial of rehearing en
banc.

    Dissenting from the denial of reconsideration en banc,
Judge Callahan, joined by Judges Bybee, Bea, and Ikuta,
wrote that the panel should have stuck to the tried and true
solution of simply appointing amicus curiae to defend the
district court’s vacatur ruling in this situation in which the
Department of Justice agrees that the conviction should be
vacated. She wrote that the appointment of the special
prosecutor is ill-advised and unnecessary, constitutionally

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. ARPAIO                      3

infirm, and an unprecedented and unauthorized intrusion of
executive power.

    In a statement regarding the denial of rehearing en banc,
Judge Tallman wrote that he agrees with the views expressed
by Judge Callahan in her dissent from the denial of rehearing
en banc.


                           ORDER

    A judge of the court sua sponte called for a vote on
whether to rehear en banc the published order in this case
dated April 17, 2018. A vote was taken, and a majority of the
non-recused active judges of the court failed to vote for en
banc rehearing. Fed. R. App. P. 35(f). Rehearing en banc is
DENIED.



W. FLETCHER, Circuit Judge, joined by GRABER,
WARDLAW, GOULD, PAEZ, and CHRISTEN, Circuit
Judges, concurring in the denial of rehearing en banc:

    Former Sheriff Joe Arpaio has appealed to our court from
the district court’s denial of a motion to vacate his conviction
for criminal contempt of court. On April 17, 2018, a motions
panel of our court issued an order authorizing the
appointment of a “special prosecutor to provide briefing and
argument to the merits panel” that will hear Arpaio’s appeal.
United States v. Arpaio, 887 F.3d 979, 980 (9th Cir. 2018).
The role of the “special prosecutor” under the order will be
limited to providing briefing and argument to the merits
panel.
4                UNITED STATES V. ARPAIO

    A member of our court unsuccessfully sought en banc
rehearing and reversal of the order of the motions panel.
Several judges now dissent from the decision of our full court
not to rehear the matter en banc. I concur in the denial of en
banc rehearing. I write to emphasize two things—the limited
role of the special prosecutor, and the legality of the order.

         I. Limited Role of the Special Prosecutor

    Arpaio violated an order of the district court. The United
States prosecuted Arpaio for criminal contempt of court and
obtained a conviction on July 31, 2017. President Trump
pardoned Arpaio on August 25, prior to sentencing by the
district court. Arpaio then moved to dismiss the prosecution
and to vacate the conviction. On October 19, 2017, the
district court granted Arpaio’s motion to dismiss the
prosecution but denied his motion to vacate the conviction.
Arpaio appealed the denial.

    On December 13, 2017, in response to an inquiry from
our court, the government wrote that it “does not intend to
defend the district court’s order from October 19, 2017 . . . ;
instead, the government intends to argue, as it did in the
district court, that the motion to vacate should have been
granted.” United States Statement at 2. The government took
“no position on whether the Court should appoint counsel to
make any additional arguments.” Id. The motions panel then
issued the order now at issue on April 17, 2018.

    After the motions panel issued its order, the government
objected to the appointment of a private attorney as a special
prosecutor, reversing the position it had taken on December
13. The government wrote on June 22, 2018: “The
prosecution of crimes is a prerogative of the Executive
                 UNITED STATES V. ARPAIO                      5

Branch, subject to a narrow exception for appointment of a
special prosecutor in contempt actions that is codified in
[Federal] Rule [of Criminal Procedure] 42. But the
appointment of a special prosecutor under the circumstances
of this case does not fit within that narrow exception, and thus
would intrude into an area that is constitutionally reserved for
the Executive.” United States Brief at 2.

    The role of a private attorney appointed as a special
prosecutor, either under Rule 42 or under the court’s inherent
authority, is the same as the role of a federal prosecutor. The
role of a federal prosecutor, and the corresponding role of a
special prosecutor, is not limited to actions in the district
court. The role of a federal prosecutor is to initiate a
prosecution for contempt of court, to prosecute the case in the
district court, and, if a conviction is obtained, to defend the
conviction in the district court and the court of appeals.

    In the case before us, the government was successful in
obtaining a conviction for criminal contempt of court. The
part of the prosecutor’s role that remains is defending on
appeal that successful result. The motions panel authorized
the appointment of a special prosecutor to perform that
function—to present in briefing, and by oral argument if
necessary, arguments in support of the district court’s denial
of Arpaio’s motion to vacate his conviction.

                  II. Legality of the Order

    The dissenters characterize the order of the motions panel
as “constitutionally infirm” and as an “unprecedented—and
unauthorized—intrusion of executive power.” Diss. Op. at
13. This is incorrect.
6                UNITED STATES V. ARPAIO

    The order of the motions panel was an exercise of judicial
rather than executive power. The order authorizes the
appointment of private counsel to assist the court in
evaluating the merits of an appeal, in a criminal contempt-of-
court case, after the government has declined to perform that
function.

                         A. Rule 42

     Federal Rule of Criminal Procedure 42 applies equally to
all federal courts in which a government or special prosecutor
would act—whether seeking and obtaining in district court a
conviction for criminal contempt, or defending in an appellate
court a conviction obtained in the district court. Federal Rule
of Criminal Procedure 1, provides:

       These rules govern the procedure in all
       criminal proceedings in the United States
       district courts, the United States courts of
       appeals, and the Supreme Court of the United
       States.

FED. R. CRIM. P. 1(a)(1).

    Federal Rule of Criminal Procedure 42(a)(2) authorizes
the appointment of a private attorney to prosecute criminal
contempt of court when the government declines that role. It
provides:

       Appointing a Prosecutor: The court must
       request that the contempt be prosecuted by an
       attorney for the government, unless the
       interest of justice requires the appointment of
       another attorney. If the government declines
                 UNITED STATES V. ARPAIO                      7

       the request, the court must appoint another
       attorney to prosecute the contempt.

FED. R. CRIM. P. 42(a)(2) (second emphasis added).

    Rule 42(a)(2) is not itself the source of a federal court’s
authority to appoint a private attorney as a special prosecutor
to perform the role of a government attorney in prosecuting
a criminal contempt of court. Rather, it is an implementation
of a court’s pre-existing inherent authority to appoint a
special prosecutor when the government declines to
prosecute.

    An earlier version of Rule 42 did not explicitly authorize
the appointment of a private attorney as a special prosecutor
to prosecute criminal contempt of court. The earlier Rule
provided only that notice be given to an alleged contemnor
that a government or private attorney had been appointed to
prosecute the contempt. In Young v. United States ex rel.
Vuitton, 481 U.S. 787, 793 (1987), the Second Circuit had
upheld a district court order appointing two private attorneys
as “special prosecutors” to prosecute a criminal contempt of
court. The Supreme Court struck down the appointment on
the ground that the two special prosecutors were not
disinterested, given that they represented one of the parties in
the underlying civil case. But the Court wrote at length to
uphold the right of the court to appoint a disinterested private
attorney as a special prosecutor.

    The Court acknowledged that Rule 42, as then written,
did not explicitly authorize a court to appoint private
attorneys as special prosecutors. But it held that courts have
pre-existing inherent authority to make such appointments.
8               UNITED STATES V. ARPAIO

       While it is true that Federal Rule of Criminal
       Procedure 42(b) does not provide
       authorization for the appointment of a private
       attorney, it is long settled that courts possess
       inherent authority to initiate contempt
       proceedings for disobedience to their orders,
       authority which necessarily encompasses the
       ability to appoint a private attorney to
       prosecute the contempt.

Id. (emphases added).

    Rule 42 was amended in 2002 to add what is now Rule
42(a)(2). The Committee Notes cite Young and explain the
rationale for the amendment:

       Revised Rule 42(a)(2) now explicitly
       addresses the appointment of a “prosecutor”
       and adopts language to reflect the holding in
       Young v. United States ex rel. Vuitton,
       481 U.S. 787 (1987). In that case the
       Supreme Court indicated that ordinarily the
       court should request that an attorney for the
       government prosecute the contempt; only if
       that request is denied, should the court appoint
       a private prosecutor. The rule envisions that
       a disinterested counsel should be appointed to
       prosecute the contempt.

FED. R. CRIM. P. 42 Advisory Committee Notes to 2002
amendment.
                 UNITED STATES V. ARPAIO                     9

                     B. Inherent Power

    Rule 42 is rooted in the longstanding inherent power of
the judiciary to appoint disinterested private attorneys as
special prosecutors to pursue criminal contempt proceedings
in federal court when government prosecutors are unwilling
or unable to perform that function. The Court in Young made
clear that Rule 42 is rooted in an inherent judicial power that
exists independently of the Rule. Ordinary criminal
prosecutions are, of course, exercises of the executive power.
Prosecutions for criminal contempt of court are different.
Such prosecutions are vindications of the judicial power, and
the use of private attorneys as special prosecutors is part of
the judicial function. The Court wrote in Young:

       The Rule’s assumption that private attorneys
       may be used to prosecute contempt actions
       reflects the longstanding acknowledgment that
       the initiation of contempt proceedings to
       punish disobedience to court orders is a part
       of the judicial function.

Young, 481 U.S. at 795 (emphasis added).

    In the case before us, a government prosecutor sought and
obtained a conviction for criminal contempt in the district
court. The government then declined to defend the
conviction when Arpaio appealed the district court’s denial of
his motion for vacatur. The Court in Young instructs us what
to do in that circumstance:

       If the Judiciary were completely dependent on
       the Executive Branch to redress direct affronts
       to its authority, it would be powerless to
10                 UNITED STATES V. ARPAIO

        protect itself if that Branch declined
        prosecution. The logic of this rationale is that
        a court ordinarily should first request the
        appropriate prosecuting authority to prosecute
        contempt actions, and should appoint a private
        prosecutor only if that request is denied. Such
        a procedure ensures that the court will
        exercise its inherent power of self-protection
        only as a last resort.

Id. at 801.

     Our court followed the procedure prescribed in Young.
We inquired whether the government would defend Arpaio’s
conviction on appeal. When the government responded that
it did not intend to do so, the motions panel issued an order
authorizing the appointment of a special prosecutor to
perform the prosecutorial functions that the government had
declined to perform. Such an appointment, as the Court’s
opinion in Young makes clear, is “part of the judicial
function,” enabling the judiciary “to protect itself if [the
Executive] Branch decline[s] prosecution.” Id. at 795, 801.

              III. Our Dissenting Colleagues’ View

    Our dissenting colleagues have a much narrower view of
Rule 42 and the judiciary’s inherent power. They concede, as
they must, that the judicial branch has the authority under
Rule 42 and its inherent power to “protect itself” if the
executive branch declines to provide that protection. They
also concede, as they must, that a court’s authority under Rule
42 and its inherent power extends to the appointment of
private attorneys as special prosecutors to initiate proceedings
for criminal contempt of court.
                 UNITED STATES V. ARPAIO                    11

    However, our colleagues contend that a court’s authority
ends as soon as criminal contempt-of-court proceedings are
“initiated.” Diss. Op. at 17–18. They write, “Once a
contempt proceeding begins, the court’s authority is
vindicated and the court has no further stake in the matter.”
Id. This cannot be right. Mere “initiation” of a criminal
contempt proceeding is hardly sufficient to protect the
integrity of the court. Actual prosecution of that contempt,
once initiated, is necessary. Defense of a conviction on
appeal is also necessary. That is, all of the normal functions
of a prosecutor are necessary if the judiciary is fully to
“protect itself” when the executive branch declines to provide
that protection.

                            ***

    The order of the motions panel authorized the
appointment of a special prosecutor under Rule 42 and its
inherent power. During the pendency of Arpaio’s appeal to
our court, the special prosecutor will continue the prosecution
for criminal contempt of court that the government has
abandoned.

    Once the government declined to continue the prosecution
by defending Arpaio’s conviction on appeal, the motions
panel had no choice. Rule 42 specifies that if the government
declines to prosecute, “the court must appoint another
attorney to prosecute the contempt.” FED. R. CRIM. P.
42(a)(2) (emphasis added). As the Supreme Court wrote in
Young:

       If the Judiciary were completely dependent on
       the Executive Branch to redress direct affronts
       to its authority, it would be powerless to
12                 UNITED STATES V. ARPAIO

       protect itself if that Branch declined
       prosecution.

481 U.S. at 801.



TASHIMA, Senior Circuit Judge, statement regarding denial
of rehearing en banc:

   I agree with and fully support Judge Fletcher’s
concurrence in the denial of rehearing en banc.



CALLAHAN, Circuit Judge, with whom BYBEE, BEA, and
IKUTA, Circuit Judges, join, dissenting from denial of
reconsideration en banc:

    The question before the motions panel was a simple one:
Given that the Unites States Department of Justice agrees
with the appellant, Sheriff Arpaio, on the legal point that
Arpaio’s contempt conviction should be vacated, what should
the court do to ensure the merits panel receives briefing and
argument on both sides of the issue? The tried and true
solution is to appoint amicus curiae to provide such briefing.
The panel majority, unsatisfied with having already appointed
amici curiae who have ably briefed the merits, took the
unprecedented step of appointing a “special prosecutor” to
supplant the Department of Justice.

   We should have reconsidered the majority’s decision en
banc. As Judge Tallman states in his dissent, the appointment
of a special prosecutor is “ill-advised and unnecessary.”
                     UNITED STATES V. ARPAIO                             13

The appointment is also constitutionally infirm. The
majority’s we-see-no-reason-why-not approach does not
justify its admittedly unprecedented—and unauthorized—
intrusion of executive power.

                                      I

    Judge G. Murray Snow (D. Ariz.) issued an order of
charges for criminal contempt against former Maricopa
County Sheriff Joseph M. Arpaio (and others), and requested
that the United States Attorney’s office prosecute Sheriff
Arpaio. The government accepted the request, and the Public
Integrity Section of the United States Department of Justice
successfully prosecuted Sheriff Arpaio in a bench trial
conducted by Judge Susan R. Bolton, obtaining a conviction
of criminal contempt on July 31, 2017. Before sentencing,
however, President Donald Trump pardoned Arpaio. Rather
than challenge the conviction, the sheriff accepted the pardon.
He then moved to dismiss the action and to vacate the
conviction and all other orders in the case. The district court
granted the first request but denied the second. Arpaio
appeals from the denial of the motion to vacate.1

   Non-parties who served as amici curiae in the district
court proceedings filed a motion requesting permission to




    1
      Sheriff Arpaio’s appeal is limited to the question of whether, in light
of the pardon, the district court should have vacated the conviction. No
one appealed the order dismissing the action. Our court denied a late-filed
request for the appointment of counsel to cross-appeal the dismissal on
behalf of the government because the time to appeal had expired.
14                  UNITED STATES V. ARPAIO

participate as amici curiae in the appeal.2 The motion also
asked the court “to appoint a private attorney” under Federal
Rule of Criminal Procedure 42 to defend the denial of the
request for vacatur “to ensure that this Court has the full set
of issues in this matter before it in an adversarial proceeding.”
The court granted the motion in part, directed that the Clerk
file amici curiae’s proposed merits brief, which defends the
district court’s decision, and allowed amici to file a
supplemental merits brief.3

    The motions panel also ordered the government to “file a
statement indicating whether it intends to enter an appearance
and file an answering brief in this appeal.” The order further
stated that if the government intended not to defend the
district court’s order denying the motion to vacate, the
government “shall also provide its position on whether this
court should appoint counsel to represent the government’s
interests on appeal and defend the district court’s order.” The
order did not indicate that the panel was considering
replacing the government with a “special prosecutor.”

    The government responded that it “intends to represent
the government’s interests in this appeal.” The government
further stated that it “does not intend to defend the district


    2
      These amici include The Protect Democracy Project, Inc. (which is
represented by Perkins Coie LLP and Messing & Spector LLP), Free
Speech for People, The Coalition to Preserve, Protect and Defend, and the
Roderick and Solange MacArthur Justice Center (Northwestern Pritzker
School of Law).
     3
     Other non-parties, Erwin Chemerinsky, Michael E. Tigar, and Jane
B. Tigar (who are represented by Riordan & Horgan), have also sought
leave to file a brief as amici curiae and submitted a proposed brief
defending the district court’s denial of the request for vacatur.
                UNITED STATES V. ARPAIO                   15

court’s order from October 19, 2017 . . . ; instead, the
government intends to argue, as it did in the district court,
that the motion to vacate should have been granted. We take
no position on whether the Court should appoint counsel to
make any additional arguments.”

    On April 17, 2018, over a dissent by Judge Tallman, the
motions panel issued its published order stating it “will
appoint a special prosecutor.” United States v. Arpaio,
887 F.3d 979, 980 (9th Cir. 2018). The panel acknowledged
the lack of any precedent for the court appointing a special
prosecutor in a proceeding with a similar posture. Id. at
981–82. The panel justified its unprecedented action by
stating, “[w]e see no reason why such appointment should not
take place under Rule 42(a)(2).” Id. at 982.

    The parties were then ordered to file supplemental briefs
on “whether the Court has the authority, either pursuant to
Fed. R. Crim. P. 42(a)(2) or under its inherent authority, to
appoint a special prosecutor under the circumstances
presented by this case.” United States v. Arpaio, 891 F.3d
1130, 1130–31 (9th Cir. 2018). The parties and amici filed
supplemental briefs. The Department of Justice made clear
in its brief that it has no intent to cede its role as the
prosecutor who brought this action to a replacement special
prosecutor. The government argued that the court lacks the
power to appoint a special prosecutor, as opposed to amicus
counsel, at this stage of the proceedings.
16               UNITED STATES V. ARPAIO

                              II

                              A

    A court’s authority to appoint a “special prosecutor” is
extremely limited. Such an exercise of executive-like power
is authorized only when necessary to vindicate the court’s
own authority. See Young v. U.S. ex rel. Vuitton et Fils S.A.,
481 U.S. 787, 793–96, 800–01 (1987).

     “The principle of separation of powers was not simply an
abstract generalization in the minds of the Framers: it was
woven into the document that they drafted in Philadelphia in
the summer of 1787.” Buckley v. Valeo, 424 U.S. 1, 124
(1976). “Each branch ‘exercise[s] . . . the powers appropriate
to its own department,’ and no branch can ‘encroach upon the
powers confided to the others.’” Patchak v. Zinke, 138 S. Ct.
897, 904–05 (2018) (alterations in original). The Supreme
Court has cautioned that each branch—including the
judiciary—must “resist[]” the inherent pressure “to exceed
the outer limits of its power, even to accomplish desirable
objectives.” I.N.S. v. Chadha, 462 U.S. 919, 951 (1983).

    The judicial branch cannot take, or be given by another
branch, “executive . . . duties of a nonjudicial nature” where
such duties are not provided for in the Constitution. See
Buckley, 424 U.S. at 123. “The purpose of this limitation is
to help ensure the independence of the Judicial Branch and to
prevent the Judiciary from encroaching into areas reserved for
the other branches.” Morrison v. Olson, 487 U.S. 654,
677–78 (1988). The Supreme Court commands “vigilance”
against the “danger[]” of the judicial branch being “allowed
‘tasks that are more properly accomplished by [other]
                 UNITED STATES V. ARPAIO                      17

branches.’” Mistretta v. United States, 488 U.S. 361, 383
(1989) (quoting Morrison, 487 U.S. at 680–81).

    Although the Constitution squarely endows the executive
branch with the prosecutorial power, the Supreme Court has
recognized a limited judicial power to appoint a special
prosecutor to initiate criminal contempt proceedings. See
Young, 481 U.S. at 800–01. This inherent power is justified
by the judiciary’s need “to vindicate its own authority without
complete dependence on other Branches.” Id. at 796. But
that doesn’t give courts carte blanche to exercise control over
this executive function whenever they “see no reason why”
not. See Arpaio, 887 F.3d at 982. Rather, “[t]he need to
vindicate a court’s authority is . . . satisfied by ensuring that
an alleged contemner will have to account for his or her
behavior in a legal proceeding, regardless of whether the
party is ultimately convicted or acquitted.” Young, 481 U.S.
at 796 n.8.

    In other words, the need for the judiciary’s limited quasi-
executive power—and thus the power itself—is extinguished
once criminal contempt proceedings are initiated. The
Supreme Court repeated several times in Young that the
power of appointment is limited to the “initiation” of
contempt proceedings. See, e.g., Young, 481 U.S. at 793
(“[C]ourts possess inherent authority to initiate contempt
proceedings for disobedience to their orders.” (emphasis
added)); id. at 795 (“[T]he initiation of contempt proceedings
to punish disobedience to court orders is a part of the judicial
function.” (emphasis added)); id. at 796 (“Courts cannot be
at the mercy of another Branch in deciding whether such
proceedings should be initiated.” (emphasis added)); id. at
800–01 (“[C]ourts have long had . . . the authority to appoint
private attorneys to initiate such proceedings.” (emphasis
18                   UNITED STATES V. ARPAIO

added)); id. at 801 (“[A] court has the authority to initiate a
prosecution for criminal contempt.” (emphasis added)). Once
a contempt proceeding begins, the court’s authority is
vindicated and the court has no further stake in the matter.
See id. at 796 n.8 (“A court’s ability to institute a contempt
proceeding is therefore essential to the vindication of its
authority in a way that the ability to determine guilt or
innocence is not.”).4

     Additionally, although “a court has the authority to
initiate a prosecution for criminal contempt, its exercise of
that authority must be restrained by the principle that ‘only
“[t]he least possible power adequate to the end proposed”
should be used in contempt cases.’” Id. at 801 (quoting
United States v. Wilson, 421 U.S. 309, 319 (1975)) (alteration
in original). “This principle of restraint in contempt counsels
caution in the exercise of the power to appoint a private
prosecutor.” Id. Such power exists “only as a last resort,”
which means only if the court first asks the appropriate
prosecuting authority to initiate contempt proceedings and
that request is declined. Id.

                                      B

   The majority reaches two conclusions in support of its
decision to “appoint a special prosecutor.” First, while
acknowledging there is no precedent for expansion of the

     4
      Even if a court’s power to appoint a prosecutor is not extinguished
upon the initiation of criminal proceedings, such power certainly does not
survive past an unappealed conviction. In this regard, the posture of this
case is significant. Rather than challenge his conviction, Arpaio chose to
accept the Presidential pardon. The district court then properly dismissed
the case in light of the pardon. Arpaio does not appeal his conviction; he
appeals only the district court’s refusal to vacate its determination of guilt.
                 UNITED STATES V. ARPAIO                      19

power to appoint a special prosecutor to the situation here, the
majority nonetheless concludes that it “ha[s] the authority to
appoint counsel under Federal Rule of Criminal Procedure
42.” Arpaio, 887 F.3d at 981. Second, the panel concludes
it “ha[s] inherent authority to appoint special counsel.” Id. at
982. Neither conclusion withstands scrutiny.

    The majority’s assertion that Rule 42 empowers federal
judges to appoint a special prosecutor is simply wrong. The
Supreme Court stated in Young that Rule 42 “does not
provide authorization for the appointment of a private
attorney.” Young, 481 U.S. at 793; see id. at 794 (observing
that Rule 42 “does not itself purport to serve as authorization
for” the practice of appointing a special prosecutor). Rather,
such limited authority is inherent in the constitutional grant
of power to the judiciary, and Rule 42 merely refers to that
authority and “speaks only to the procedure for providing
notice of criminal contempt.” Id. at 793 (emphasis omitted).
The Federal Rules of Criminal Procedure, as promulgated by
the Supreme Court under the Rules Enabling Act, could no
more grant Article III judges the power to appoint a
prosecutor to initiate criminal proceedings than the judicial
branch or legislative branch could unilaterally usurp some
purely executive function.

    The only explanations offered for the majority’s asserted
power to appoint a special prosecutor is that the majority
“see[s] no reason why such an appointment should not take
place under Rule 42” and that the “operation” of Rule 42 “is
not confined to investigations and trials in the district court.”
20                   UNITED STATES V. ARPAIO

Id. at 981–82.5 In seeing no reason to doubt its authority to
appoint a special prosecutor, the majority overlooks
constitutional constraints on the court’s power.

    Curiously, the majority seeks to justify the appointment
of a special prosecutor by relying on the “longstanding
practice” of appointing a disinterested party to serve as
amicus curiae to defend a lower court’s decision when the
United States declines to defend the decision.6 Arpaio,
887 F.3d at 982. To state the obvious: appointment of a
special prosecutor as contemplated by Rule 42 is not the same
thing as appointment of appellate counsel or amicus curiae
simply to brief and argue a case on appeal. A “special
prosecutor” is “[a] lawyer appointed to investigate and, if
justified, seek indictments in a particular case.” Prosecutor,
Black’s Law Dictionary (10th ed. 2014). In contrast, “amicus
curiae” is “[s]omeone who is not a party to a lawsuit but who


     5
       In asserting that the “operation” of Rule 42 is not confined to
activities in the district court, the panel fails to recognize the distinction
between a special prosecutor’s powers once appointed (which can
continue into an appeal) and the court’s power to appoint a special
prosecutor in the first instance on appeal. The majority cites no authority
stating that the judiciary’s power to appoint a special prosecutor is
coterminous with the hypothetical duration of the special prosecutor’s
power once appointed. Indeed, such a view is contrary to the Young
Court’s narrow construction of the judiciary’s power.
     6
      Amici’s attempt to defend the majority’s decision suffers from the
same defect. Tellingly, in their brief on the en banc question, amici
painstakingly avoid using the term “special prosecutor” other than when
quoting the panel’s order and reciting Young’s holding that “courts possess
inherent authority to initiate contempt proceedings.” Instead, like the
panel, they seek to justify the order by asserting the undisputed
proposition that courts have the power to appoint amicus or appellate
counsel to defend a lower court’s judgment.
                     UNITED STATES V. ARPAIO                            21

petitions the court or is requested by the court to file a brief
in the action because that person has a strong interest in the
subject matter.” Amicus Curiae, Black’s Law Dictionary
(10th ed. 2014). As the Department of Justice notes, “[t]he
distinction is important because, by its nature, counsel
appointed as amicus would be limited to defending the
judgment and could not claim any of the powers associated
with a special prosecutor.”7

   Despite the clear distinction between a “special
prosecutor” on the one hand and “appellate counsel,”
“counsel,” or “amicus curiae” on the other hand, the majority
uses these distinct labels throughout its order as if they were


    7
        A special prosecutor’s powers are broad. A special prosecutor
appointed by the Attorney General under the former Ethics in Government
Act, and the regulations that replaced that Act when it expired in 1999, is
bestowed with “the full power and independent authority to exercise all
investigative and prosecutorial functions of any United States Attorney.”
28 C.F.R. § 600.6; see also 28 U.S.C. § 594(a) (providing that a special
prosecutor’s powers include “conducting proceedings before grand juries
and other investigations,” “making applications to any Federal court . . .
for warrants, subpoenas, or other court orders,” and “initiating and
conducting prosecutions in any court of competent jurisdiction, framing
and signing indictments, filing informations, and handling all aspects of
any cases, in the name of the United States”). A special prosecutor
appointed under Rule 42 to prosecute contempt necessarily has the same,
or at least similar, prosecutorial powers. And just as we have no ability
to expand or to restrict the United States Attorney’s prosecutorial powers,
we are powerless to exercise control over the prosecutorial function of a
special prosecutor appointed to represent the government. Here, of
course, the movants wish the special prosecutor to take a position in
litigation that the district court properly denied Arpaio’s motion to vacate
the fact of his conviction. That is directly opposite to the position taken
by the United States. The panel does not tell us who will resolve such
conflicts between the special prosecutor and the United States Department
of Justice.
22                  UNITED STATES V. ARPAIO

interchangeable.8 The majority’s citation to Lucia v. SEC,
138 S. Ct. 923 (2018), is ironic. See Arpaio, 887 F.3d at 982.
In that case, the Supreme Court invited a particular attorney
“to brief and argue this case, as amicus curiae, in support of
the judgment below.” Lucia, 138 S. Ct. 923. Like in Lucia,
the panel’s prior appointment of amici is all that is needed
here. Yet the majority eschews the Supreme Court’s
approach, instead somehow finding in Lucia’s single-
sentence appointment of amicus curiae support for the
appointment of a special prosecutor to displace the
Department of Justice.

    The majority’s conflation of the routine appointment of
amici with the extraordinary act of appointing a special
prosecutor not only violates the separation of powers, but is
also sloppy, creates bad law, and invites reversal by the
Supreme Court.

                                    C

   The appointment of a special prosecutor is completely
unnecessary.

     First, the United States did not decline the district court’s
request to prosecute Sheriff Arpaio for contempt. The district
court’s authority was vindicated when the government
initiated contempt proceedings. Although the district court


     8
       See Arpaio, 887 F.3d at 981 (“we will appoint a special
prosecutor”); id. (“unless we appoint a special prosecutor”); id. (“we have
the authority to appoint counsel under [Rule 42”]); id. at 982 (“we have
inherent authority to appoint a special counsel”); id. (“inherent authority
to appoint disinterested counsel”); id. (“inherent judicial power to appoint
appellate counsel”); id. (“inherent authority to appoint an amicus”).
                    UNITED STATES V. ARPAIO                            23

had no stake in the outcome of those proceedings, the result
was in fact a conviction.

    Second, the majority’s sole stated purpose in the
appointment—to allow the merits panel the benefit of full
briefing and argument—does not require or justify the
appointment of a special prosecutor. The court’s only interest
in this litigation is to have the issues raised on appeal fully
briefed and argued, and that purpose is achieved by the court
exercising its undisputed authority to appoint amicus curiae.
Accordingly, even if the government’s position that the
district court is in error would otherwise result in uneven
briefing, the easy solution is the non-controversial
appointment of amici to brief the issues.9

    Indeed, the majority’s assertion that the merits panel “will
not receive the benefit of full briefing and argument” absent
appointment of a special prosecutor is perplexing in light of
the panel’s prior order granting various groups leave to serve
as amici and directing that the Clerk file amici’s proposed
brief. Given the obvious option of appointing amicus curiae,
perhaps even more perplexing is our concurring colleagues’




     9
       Confession of error by the government does not relieve the court “of
the performance of the judicial function.” Sibron v. New York, 392 U.S.
40, 58 (1968); Young v. United States, 315 U.S. 257, 258–59 (1942)
(“[O]ur judicial obligations compel us to examine independently the errors
confessed.”). As stated in the Fourth Circuit case cited by the majority,
“the Court commonly appoints an amicus”—not a special
prosecutor—when the government confesses error in the lower court’s
judgment. See Arpaio, 887 F.3d at 982 (quoting United States v. Brainer,
691 F.3d 691, 693 (4th Cir. 1982)).
24                  UNITED STATES V. ARPAIO

suggestion that the motions panel had “no choice” but to
appoint a special prosecutor. Conc. Op. at 11.10

    A cursory review of amici’s merits brief (prepared by
highly esteemed counsel) confirms that amici vigorously
defend the district court’s decision. Amici will also be able
to respond to the appellant’s opening brief because the panel
expressly authorized them to “file a supplemental brief
addressing the merits of this appeal.” Additional proposed
amici have filed a separate proposed merits brief that likewise
heartily defends the district court.

    Even though the court has received merits briefs on both
sides of the only issue in this appeal, the panel majority
maintains that it is compelled to appoint a special prosecutor
to supplant the DOJ. Will the merits panel’s consideration of
the issue somehow be limited because amici do not have
prosecutorial powers in presenting the case for affirmance?
No. Will the merits panel’s decision regarding vacatur
somehow be devoid of effect if rendered without the presence
of a “special prosecutor” in the case? No. On top of our
unflagging duty to follow the law in deciding the appeal on
its merits (as in all cases), do we have some additional
interest in arriving at a particular result or seeing to the
punishment of Arpaio? Of course not.




     10
       The concurrence makes this assertion without even attempting to
explain why the appointment of amicus curiae is inadequate to serve the
majority’s sole purpose of “provid[ing] briefing and argument to the
merits panel.” Arpaio, 887 F.3d at 980. We appoint amici all the time to
“assist the court in evaluating the merits of an appeal.” See Conc. Op. at
6.
                 UNITED STATES V. ARPAIO                      25

    Nothing about our court resolving this case based on the
briefing of the parties and amici either threatens to render the
district court that issued the injunction against Arpaio
impotent or undermines that court’s power in any way. The
merits panel’s ultimate resolution of the sole issue in this case
simply does not implicate the judiciary’s interest in ensuring
that disobedience of contempt orders is punished.

                               D

   If simply appointing amici to present a brief and argument
would have done the trick, why encroach (or even risk
encroaching) on the executive branch’s prerogative by
appointing a special prosecutor?

     It is now the law of this circuit—which covers nearly 20%
of the nation’s population—that a judge may, in the name of
getting “full briefing,” appoint a special prosecutor to replace
the United States Department of Justice provided the judge
“see[s] no reason why” not. Arpaio, 887 F.3d at 982. And
the judge may do this even though the federal prosecutor
initiates the criminal action, obtains a conviction, and fully
intends to represent the government’s interests throughout the
proceedings. Under the majority’s rationale, a judge could
appoint a special prosecutor when he or she simply disagrees
with the prosecution strategy or litigation position and thus
declares that the United States has abandoned the case.

    The combination of the majority’s holding being
unprecedented and so obviously unnecessary to the panel’s
stated purpose (i.e., to brief the merits of the appeal) will
serve only to undermine public confidence in the merits
panel’s ultimate decision—whatever it decides. And it isn’t
difficult to anticipate the mischief that is sure to result from
26               UNITED STATES V. ARPAIO

such an unreasoned application of the judiciary’s power to
appoint a special prosecutor. Justice Scalia offered a
prophetic warning in his concurring opinion in Young:

       In light of the broad sweep of modern judicial
       decrees, which have the binding effect of laws
       for those to whom they apply, the notion of
       judges’ in effect making the laws, prosecuting
       their violation, and sitting in judgment of
       those prosecutions, summons forth much
       more vividly than [the Supreme Court in
       Anderson v. Dunn, 6 Wheat. 204 (1821)]
       could ever have imagined the prospect of “the
       most tyrannical licentiousness.”

Young, 481 U.S. at 822 (Scalia, J., concurring) (quoting
Anderson, 6 Wheat. at 228). Perhaps Justice Scalia was right
all along that “federal courts have no power to prosecute
contemners for disobedience of court judgments, and no
derivate power to appoint an attorney to conduct contempt
prosecutions.” Id. at 825 (Scalia, J., concurring).

     While Sheriff Arpaio and the Chief Executive who
pardoned him have evoked strong feelings from those with
opposing political views, we abandon our role as impartial
jurists by “wading into that [political] thicket,” effectively
firing the United States’ attorneys, and appointing a special
prosecutor in their stead. See Arpaio, 887 F.3d at 986
(Tallman, J., dissenting).

                              III

    The executive branch’s role is to prosecute. Our role is to
adjudicate. When we close our eyes to the constitutional
                 UNITED STATES V. ARPAIO                   27

limits of our power, we are bound to veer out of our lane, and
there’s no telling what else we might do simply because “we
see no reason why” not. The prosecutors here intend to do
their job—we should let them and worry about doing our own
job.

    The panel should have stuck to the tried and true solution
of simply appointing amicus curiae to defend the district
court’s vacatur ruling. The prior appointment of amici is
more than adequate to achieve the panel’s sole stated purpose
of getting briefing and argument for the merits panel. And,
unlike the appointment of a special prosecutor, such an
appointment doesn’t run afoul of the Constitution’s
separation of powers.

    I respectfully dissent from the denial of reconsideration
en banc.



TALLMAN, Senior Circuit Judge, statement regarding denial
of rehearing en banc:

    I agree with the views expressed by Judge Callahan in her
dissent from the denial of rehearing en banc.
