887 F.3d 979

TALLMAN, Circuit Judge, dissenting:
Amici ask us to appoint a private attorney under Federal Rule of Criminal Procedure ("Rule") 42(a)(2) to defend the district court's Order denying Defendant/Appellant Joseph Arpaio's request for vacatur of his criminal contempt conviction. Rule 42(a)(2) is not applicable here. Arpaio effectively conceded his guilt by accepting the pardon, and there is no need for more investigation, presentation of evidence, or further proceedings to determine if the equitable relief of vacatur is appropriate. The United States has told us it is not abdicating its responsibility to represent the Government's interest in this appeal. Nor do amici attempt to hide the true purpose of their request-to challenge the underlying pardon. But the constitutionality of the President's pardon is not at issue in Arpaio's current appeal; the denial of Arpaio's motion for vacatur of his conviction is. The request is inappropriate. My colleagues' decision to appoint separate counsel now is therefore ill-advised and unnecessary. I respectfully dissent.
I
Following his pardon on August 25, 2017, Arpaio moved to dismiss his criminal contempt conviction with prejudice and for vacatur of the record. On October 4, 2017, an able United States district judge found that the pardon was valid, dismissed the action for criminal contempt, entered that order on the public docket, and closed the case. The order also denied amici 's motion to appoint a Rule 42 attorney, but reserved ruling on Arpaio's additional request for vacatur. After considering further briefing on whether to vacate, the district court denied the request for vacatur on October 19, 2017, and Arpaio timely appealed.
Amici initially wanted us to appoint a special prosecutor to both defend the October 19 vacatur order and file a notice of appeal from the district court's earlier October 4 dismissal order. We denied amici 's motion in part, however, because under Federal Rule of Appellate Procedure 4(b)(1)(B)(ii), the time for filing an appeal to challenge the constitutionality of the pardon had run. Nov. 22 Order, Dkt. 9; see United States v. Wheeler , 952 F.2d 326, 327 (9th Cir. 1991) ("[A] district court's order refusing to vacate an underlying contempt order is nonappealable when the ground on which vacatur is sought existed at the time the contempt order was entered and the contemnor failed to appeal timely from that order."). In short, the basis for our November 22 Order was that amici were too late because they missed the deadline to raise a constitutional challenge to the earlier order.
We also asked the United States to state its intentions regarding Arpaio's separate vacatur appeal. The Government responded that it had entered an appearance and "intends to represent the government's interests in this appeal." The Government explained that, instead of defending the district court's October 19 order, it "intends to argue ... that the motion to vacate should have been granted." That ought to have been the end of the matter.
But because the United States has chosen not to defend the vacatur order, amici now assert that the Government is declining to prosecute Arpaio's criminal contempt conviction and that we are required to appoint special counsel. Regrettably, my colleagues in the majority agree. Sound judicial discretion instead counsels that we should deny the request and not appoint a special prosecutor at this late date in the case.
II
The request to appoint a private lawyer under Rule 42(a)(2), in place of the United States, is inappropriate now because it effectively gives interested parties an avenue to belatedly appeal the pardon's effect on successful conviction, despite the Government's continued participation.
A
The criminal contempt case was successfully prosecuted by the United States, which did not hesitate or decline to prosecute. No useful purpose would be served by appointing a new prosecutor now.
Rule 42(a)(2) was developed for a very different purpose than employed here. " Federal Rule of Criminal Procedure 42(a)(2) allows a court to appoint a private attorney to investigate and prosecute potential instances of criminal contempt." Hollingsworth v. Perry , 570 U.S. 693, 133 S.Ct. 2652, 2673, 186 L.Ed.2d 768 (2013) (Kennedy, J., dissenting) (emphasis added). In recognizing the power of the judiciary to appoint special prosecutors, the Court stated in Young v. U.S. ex rel. Vuitton et Fils S.A. that "[t]he prosecutor is appointed solely to pursue the public interest in vindication of the court's authority." 481 U.S. 787, 804, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (emphasis added). Accordingly, "[a] private attorney appointed to prosecute a criminal contempt therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution." Id.
The need for special counsel is over. The United States secured a contempt conviction at trial and any affront to the court's authority was vindicated. We have observed that a prosecutor, as part of the prosecutorial power to punish a putative contemnor, "can gather evidence and investigate matters more thoroughly than a court can at an evidentiary hearing alone. He or she can also serve to shorten the length of trial by culling through evidence and witnesses beforehand to determine which are relevant and credible." F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc. , 244 F.3d 1128, 1140 (9th Cir. 2001).
But these powers of prosecution do not-and should not-extend to tangential matters of end-of-case record-keeping or vacatur of the record of a successful conviction following a pardon. This is not why Rule 42(a)(2) exists. It exists to ensure the judiciary "has a means to vindicate its own authority without complete dependence on other Branches." Young , 481 U.S. at 796, 107 S.Ct. 2124. It also applies when the government is ineligible or otherwise declines to prosecute. See, e.g. , F.T.C. v. Am. Nat. Cellular , 868 F.2d 315, 318-20 (9th Cir. 1989) (analyzing factors that contribute to a party's ineligibility to prosecute criminal contempt charges); In re Special Proceedings , 373 F.3d 37, 43 (1st Cir. 2004) (holding that the appointment of a special prosecutor was appropriate where the government attorneys were the possible source of the leak of information underlying the criminal contempt prosecution).
Here, the district court's authority was vindicated when Arpaio was convicted of criminal contempt. Its authority will not be usurped if that conviction is vacated in light of the pardon, or if the court of appeals ultimately affirms the district court's refusal to annul it from the defendant's record.
B
The Government has also never declined to prosecute this case. See Fed. R. Crim. P. 42(a)(2) ("If the government declines the request [to prosecute a contempt charge], the court must appoint another attorney to prosecute the contempt."). It maintains that it continues to represent the public (and the Executive) interest in the vacatur proceedings. Amici , however, would have us believe that because the United States supports the vacatur, such action is tantamount to the Government declining to prosecute a criminal contempt conviction. But they cite no cases for the proposition that Rule 42 requires appointing a special prosecutor where, as here, the Government has already successfully obtained a conviction, but the President has pardoned the contemnor.
Nor does "the interest of justice" mandate that the Government be precluded from continuing to act as a prosecutor so the record of Arpaio's conviction may be maintained. Fed. R. Crim. P. 42(a)(2). And because the pardon does not erase Arpaio's guilt or expunge the fact of the judgment, there is no underlying affront to the court's authority stemming from criminal contempt left to vindicate. See In re North , 62 F.3d 1434, 1437 (D.C. Cir. 1994) ("Because a pardon does not blot out guilt or expunge a judgment of conviction, one can conclude that a pardon does not blot out probable cause of guilt or expunge an indictment.").
Even if some future merits panel subsequently reversed the district court's vacatur order denying Arpaio's request, the special prosecutor would still need the Solicitor General's approval to file a petition for writ of certiorari to the United States Supreme Court. United States v. Providence Journal Co. , 485 U.S. 693, 706-07, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). This seems highly unlikely given the Government's current litigating position. Arpaio was convicted, pardoned, and all that remains is a matter of record-keeping as to the fact of his conviction.
Given the Government's continued participation in this case, our appointment now of a special prosecutor to advance a litigating position different from that pursued by the United States Department of Justice makes it appear as though we are appointing another prosecutor because we have prejudged the case and disagree with the Government's position. In light of this appearance of judicial bias, we should respect the Government's position and remain impartial on the matter. See Commonwealth Coatings Corp. v. Cont'l Cas. Co. , 393 U.S. 145, 150, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968) ("[A]ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias."); Code of Conduct for United States Judges, 175 F.R.D. 363, 364-66 (1998).
C
More worrisome still is that amici seemingly want a special prosecutor appointed just to take another stab at attacking the pardon on constitutional grounds after they failed to timely appeal. See Amici Curiae 's Reply to Statement of the United States, Dkt. 13, at 1 ("[T]he need for a Rule 42 attorney is particularly acute in this case given the unprecedented nature of the Pardon and the novel and important constitutional issues it raises."); Brief for Amici Curiae , Dkt. 5, at 1 ("[P]roposed amici have a profound interest in ensuring that the constitutionality of President Trump's extraordinary pardon of Arpaio is reviewed by this Court."); Motion for Leave for Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar to Participate as Amici Curiae , Dkt. 18, at 3-23 (proposed amici spend three pages addressing vacatur, and nineteen subsequent pages addressing the validity of the pardon).
The Supreme Court has already ruled that the President has the power to pardon criminal contempt convictions. Ex parte Grossman , 267 U.S. 87, 122, 45 S.Ct. 332, 69 L.Ed. 527 (1925). And we have already ruled that amici missed the deadline for arguing the merits of such an appeal. It's time amici let go of that issue.
III
It is an unwise use of our authority to appoint a private attorney at this late stage to (1) "prosecute" the appeal of a case the Government already won, (2) in the face of the Government's continued willingness to participate, and (3) to countenance a surreptitious use of the vacatur appeal to pursue an untimely attack on the President's constitutional authority to pardon. I fear the majority's decision will be viewed as judicial imprimatur of the special prosecutor to make inappropriate, unrelated, and undoubtedly political attacks on Presidential authority. We should not be wading into that thicket.
Accordingly, I respectfully dissent.
Rule 42(a)(2) states in whole, "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 the request, the court must appoint another attorney to prosecute the contempt."
Amici do not appear disinterested. Given that the law firm serving as the primary signor for amici represented President Trump's former political rival, Hillary Clinton, their possible opposing interests should at least preclude them from appointment as special counsel, as they requested. Young , 481 U.S. at 811, 107 S.Ct. 2124 ("[A]ppointment of an interested prosecutor creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general.").

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