//  9/12/17  //  Commentary

Last Thursday, I wrote an op-ed in The Boston Globe urging the judge presiding over Joseph Arpaio’s criminal contempt case to appoint a special prosecutor who could challenge the constitutionality of Arpaio’s pardon.  A collection of advocacy groups, led by the lawyers at Protect Democracy, has now followed through on that idea, filing an amicus brief requesting such an appointment.  You can read the filing (on which I informally consulted) here.

For the reasons that I laid out in The Globe, I think Judge Bolton should accept the amici’s suggestion and appoint a special prosecutor, thereby ensuring that the novel constitutional questions surrounding the pardon receive full adversarial testing.  Indeed, as Protect Democracy’s brief notes, the Federal Rules of Criminal Procedure suggest that “the court must appoint another attorney to prosecute [a] contempt” case whenever the Department of Justice declines or abandons such a prosecution, as the Department has now done in this case in the wake of the President’s intervention. 

Still, if the main benefit of such an appointment is to get adversarial testing of the pardon’s validity, one might wonder, why does the court need a special prosecutor?  Can’t the same amici who are urging such an appointment just make the substantive arguments against the pardon themselves, as a number of them already have?  Indeed, Joshua Geltzer, writing at Lawfare, raises this very question, and urges the court to appoint an amicus to argue against the pardon, not a special prosecutor. 

Geltzer and I proceed from the same underlying premise: “Our legal system,” he writes, “thrives on adversarial argumentation, and Judge Bolton deserves to hear two sides of the argument, not just one, as she thinks through how to handle Arpaio’s circumstances.”  Still, it’s important to understand why the choice between a special prosecutor and a court-appointed amicus matters, and why the former is the correct route to take. 

The reason is simple: on a novel and important question of separation of powers such as this, the District Court should not be the last word on the merits.  District courts’ jobs are to create factual records, to frame the issues, and to take the first pass at resolving any core legal rulings—not the last pass.  Indeed, district courts’ legal rulings do not form binding precedent, even with respect to other district court judges.  Rather, in our judicial system, the task of authoring such definitive legal rulings falls to the courts of appeals and, ultimately, on important separation of powers questions like this one, to the Supreme Court.

But here’s the thing: without a special prosecutor, it’s much harder for the novel and important constitutional issues that this cases raises to ever make their way into the appellate courts.  That’s because, in a federal criminal case, only the defendant and “the United States” have the power to file an appeal.  And while the Supreme Court has made clear that “[p]rivate attorneys appointed to prosecute a criminal contempt action represent the United States,” a court-appointed amicus is just as clearly “not a party to [the] litigation,” and thus cannot appeal a ruling that rejects the outcome that the amicus supports.   So, if the District Court in Arpaio’s case ultimately rules (as both Geltzer and I acknowledge would be reasonable) that Arpaio’s pardon is in fact lawful, the only way to ensure that the adversarial process continues on into the appellate fora where the question can be authoritatively resolved is to ensure that a special prosecutor, not merely an amicus, is appointed.

Geltzer suggests in passing that a court-appointed amicus is preferable to a special prosecutor because the authority of special prosecutors is constitutionally suspect.  But that concern is doubly misguided in this context.  For one thing, it rests on the premise that Morrison v. Olson, an 8-1 Supreme Court opinion that upheld the constitutionality of independent counsels and that has never been overruled, is no longer good law—a position, suffice to say, that is contestable.  But more importantly, even if one thinks that Morrison is now part of the anti-canon and can therefore be ignored, that does not undermine the constitutionality of special prosecutors in criminal contempt cases.  On the contrary, the Supreme Court has expressly held that federal courts “possess inherent authority to . . . appoint a private attorney to prosecute [a] contempt” case precisely because the “prosecutorial power” in such cases is not an executive power at all, but rather “is a part of the judicial function.”  In other words, there is no “unitary executive” problem with appointing a special prosecutor in contempt cases, because the prosecuting attorney in such a proceeding—whether a Justice Department lawyer or a private attorney—is simply assisting the Court, at the Court’s invitation, in fulfilling a core judicial responsibility: prosecuting contempt.

In short, the court’s authority to appoint a special prosecutor in this situation is clearly established.   And if the ultimate goal is to ensure that the novel issues surrounding the pardon receive adversarial testing—throughout the full course of the judicial process—then a special prosecutor, not a court-appointed amicus, is the only way to go.

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