In Re Joseph M. Arpaio

Where the Department of Justice has appeared in a criminal appeal on behalf of the United States, and indicated that it intends to represent the United States’ interests on appeal, can the Ninth Circuit appoint a “special prosecutor” to replace the Department of Justice as prosecutors for the United States, simply because the Department intends to argue that the lower court erred? By appointing a special prosecutor to supplant the Department of Justice, on the sole grounds that the Department of Justice concedes error by the lower court, does the Court violate the separation of powers, as well as due process, by actively participating in the prosecution? Do federal courts have any power to appoint prosecutors to a case that the Department of Justice can legally and ethically handle, whether or not the Department actually chooses to prosecute the case? (Should Young v. United States ex rel. Vuitton et Fils S.A. be clarified or overruled?)