A federal appeals court will appoint a special prosecutor to defend the ruling of a district judge in Phoenix who refused to vacate the record of former Maricopa County Sheriff Joe Arpaio after President Donald Trump pardoned him last year.

A group of amici represented by counsel including Perkins Coie asked the U.S. Court of Appeals for the Ninth Circuit to appoint a special prosecutor to advocate against Arpaio after lawyers at the Justice Department stated on appeal that the trial judge below should have erased Arpaio's criminal contempt verdict and other rulings after the president pardoned him in August 2017.

Two members of a divided Ninth Circuit motions panel—Circuit Judges A. Wallace Tashima and William Fletcher—on Tuesday found that they had the authority to appoint a special prosecutor under Federal Rule of Criminal Procedure 42.

“Because the United States has abandoned any defense of the district court's decision with respect to vacatur, the merits panel of our court that will decide this appeal will not receive the benefit of full briefing and argument unless we appoint a special prosecutor to defend the decision of the district court,” they wrote.

In dissent, Judge Richard Tallman wrote that the move was “ill-advised and unnecessary.”

“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,” Tallman wrote. “We should not be wading into that thicket.”

Arpaio was convicted of contempt of court in a case involving racial profiling, but the president pardoned him prior to sentencing. U.S. District Judge Susan Bolton of the District of Arizona dismissed the government's case against Arpaio last year at his lawyers' request, but in October declined to vacate the court record in the case, finding the president's pardon “does not erase a judgment of conviction, or its underlying legal and factual findings.”

John “Jack” Wilenchik, one of Arpaio's lawyers at Wilenchik & Bartness in Phoenix, said in an email Tuesday that the Ninth Circuit's appointment of a special prosecutor “is nothing new in this case, which has been a battle from day one between the law and deep-seated judicial prejudice.”

“The idea that the Ninth Circuit can appoint 'another' prosecutor to a criminal case, just because the actual prosecutors agree with the defendant and the law is clearly on his side, is deeply disturbing,” he said.

Although the motions panel held off actually naming a special prosecutor in Tuesday's order, Tallman wrote in a footnote to his dissent that Perkins Coie should be out of the running.

“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,” Tallman wrote.

Reached by email Tuesday, the lead Perkins Coie lawyer on the case, Jean-Jacques “J” Cabou of the firm's Phoenix office, clarified that the firm hadn't requested to be appointed in their brief, but rather said that they “stand ready to recommend a qualified practitioner to serve this role pro bono if that would assist [the Ninth Circuit].”

“We did not ask the court to appoint us,” Cabou said. “We asked the court to appoint a qualified practitioner, which we are confident the court will now do.”