Golden Gate University Law Review


Article II of the United States Constitution grants the President unlimited authority to pardon. Specifically, the President “shall have power to grant reprieves and pardons for offences against the United States (“U.S.”), except in cases of impeachment.” Once a pardon is issued, it must be accepted by the pardoned individual for the pardon to take effect. On August 25, 2017, President Donald J. Trump pardoned Sheriff Arpaio of a conviction for contempt of court. The prior month, the District Court for the District of Arizona (“district court”) had convicted Sheriff Arpaio of criminal contempt of court for intentionally failing to adhere to the district court’s preliminary injunction.

The preliminary injunction ordered Sheriff Arpaio to stop detaining individuals based on their Hispanic appearance in order to investigate civil violations of federal immigration law. However, as Sheriff of Arizona’s Maricopa County Sheriff Office (“MCSO”), he continuously and intentionally failed to do so. Sheriff Arpaio characterized himself as “America’s Toughest Sheriff” and was known for his unequivocal stance against illegal immigration.

Subsequently, Sheriff Arpaio accepted President Trump’s pardon and then moved to vacate his conviction. Judge Bolton of Arizona’s District Court denied Sheriff Arpaio’s Motion to Vacate the Judgment for criminal contempt of court. Arpaio then appealed the denial to vacate his conviction before the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”). At which point, the U.S. Department of Justice declined to defend Judge Bolton’s order denying Arpaio’s request for vacatur.

Absent representation from the U.S., plaintiff’s amici requested that the Ninth Circuit appoint a special prosecutor to defend the district court’s decision. In a case of first impression, the Ninth Circuit determined that it had the authority to appoint a special prosecutor to defend the Arizona District Court’s order under Federal Rule of Criminal Procedure 42 and its own inherent judicial power.