The Volokh Conspiracy

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Do Court-Appointed Prosecutors Violate The Separation of Powers?

Justices Gorsuch and Kavanaugh argue they do, in defense of--checks notes--Steven Donziger.


Contempt is a curious creature of the courts. This inherent authority empowers judges to take all manner of actions against parties, including incarceration. Indeed, this power is so broad that a federal judge can order the prosecution of a party, even if the Department of Justice declines to bring the case. Consider Federal Rule of Criminal Procedure 42:

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.

This language is not optional, it is mandatory. The Court "must" make this request of DOJ, or in the alternative, "must" appoint another prosecutor. I suspect it is fairly rare that the government declines to bring a contempt prosecution. One such recent case arose in South Dakota. A district court judge held a United States Marshal in contempt of court, and, unsurprisingly, DOJ declined to prosecute another member of the federal government. As a result, the court appointed its own prosecutor, then promptly recused from the case. That recusal at least eliminated an inherent conflict of interest. I don't think a judge can remain a neutral arbiter if he appointed the prosecutor. Ultimately, the newly-appointed judge dismissed the contempt case. But in another, far-more-high-profile case, a federal judge in Manhattan chose a different path.

Readers of this blog will likely be familiar with Steven Donziger. During the 1990s, Donziger represented various Indian tribes from Ecuador who sued Texaco/Chevron for polluting the Amazon rainforest. An Ecuadorian court entered a $8.6 billion judgment against Chevron. But, it turns out, Donziger procured that judgment through fraud and bribery. The federal courts found that Donziger was liable for racketeering, and the judgment was deemed unenforceable. Donziger was later disbarred. I had actually forgotten about Donziger until I recently visited the University of Texas Law School. I noticed a flyer for some organization named GRITS (Getting Radical in the South). Donziger was apparently a keynote speaker at this conference. Go figure. He probably got a better reception than Judge Duncan did.

Anyway, that background brings us to Monday's order list. The Supreme Court denied certiorari in Donziger v. United States. Justice Gorsuch dissented, joined by Justice Kavanaugh. This case was not a direct appeal of Donziger's RICO judgment. Rather, it was an appeal from Donziger's contempt proceeding. Gorsuch describes the unusual posture:

[Chevron] also won a constructive trust on all assets Mr. Donziger received in this or any country as a result of the Ecuadorian judgment. Ibid. To enforce that trust, the district court granted Chevron discovery into Mr. Donziger's holdings and ordered him to surrender all of his electronic devices for forensic imaging. When Mr. Donziger failed to comply fully with the court's orders, it held him in criminal contempt and referred the matter to the U. S. Attorney's Office for prosecution. After some deliberation, however, the U. S. Attorney "'respectfully declined'" to take up the case. Ibid. (alteration omitted).

What happened next? The District Court, relying on Rule 42, appointed its own prosecutors:

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor's office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison.

Putting aside the separation of powers for a moment, there is something of an ethical problem. How can a trial judge remain neutral in a prosecution where he personally appointed the very prosecutors who are bringing the charges? This regime blurs the boundaries between the bench and bar. Throughout the proceeding, Donziger objected, and argued that the court's appointment of the prosecutors was unconstitutional:

Throughout these proceedings and on appeal, Mr. Donziger objected. He argued that the district court had no lawful authority to override the Executive Branch's non prosecution decision and that our Constitution's separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.

The Second Circuit affirmed, over Judge Menashi's dissent. The Supreme Court has sort-of approved of this practice. Gorsuch, in dissent, contended that these precedents are inconsistent with recent separation of powers decisions, including Collins v. YellenArthrexSeila Law, and Lucia:

In Young v. United States ex rel. Vuitton et Fils S. A. (1987), this Court approved the use of court-appointed prosecutors as a "last resort" in certain criminal contempt cases. But that decision has met with considerable criticism. As Members of this Court have put it, the Constitution gives courts the power to "serve as a neutral adjudicator in a criminal case," not "the power to prosecute crimes." Id. (Scalia, J., concurring in judgment).The Second Circuit acknowledged, too, that Young stands in considerable "tension" with this Court's subsequent separation-of-powers decisions.

Here, Gorsuch explains, the prosecutor did not exercise the judicial power. Rather, the prosecutor exercised executive power:

By contrast, "[e]very court and every party" has acknowledged that the court-appointed prosecutors in this case did not exercise judicial power. 38 F. 4th, at 306 (Menashi, J., dissenting). Instead, all agree, the court-appointed prosecutors here exercised "executive power" and were accountable through the Executive Branch's chain of command running ultimately to the President. Id., at 306– 307 (emphasis added). By its own terms, then, Young simply does not speak to Mr. Donziger's situation.

And as a result of this conflict, there were two briefs filed on behalf of the "United States." The real United States, and the pseudo United States, as appointed by the special prosecutor:

Highlighting the confused (but surely executive) nature of the prosecution in this case, the "United States" supplied the Second Circuit with two different briefs offering different theories. One brief came from the court-appointed prosecutors, another from lawyers within the Department of Justice.

And the trial court favored the view of the pseudo United States.

Next, Gorsuch turned to the Appointments Clause. The Second Circuit found that the prosecutor was an "inferior officer" of the United States. But such officers can only be appointed by the courts of law when Congress "vests" courts with that authority.

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Has Congress vested such authority in the courts? Well Rule 42 was adopted by the Supreme Court, so that is not a direct delegation by Congress. But the Federal Rules of Criminal Procedure were adopted pursuant to the Rules Enabling Act. Gorsuch writes that the REA doesn't cut it.

Second, courts have adopted Rule 42 under the Rules Enabling Act. That statute provides that any rules of court promulgated under its terms "shall not abridge . . . or modify any substantive right." 28 U. S. C. §2072(b). Yet, the manner in which the Second Circuit applied Rule 42 had just that impermissible effect. The "decision of a prosecutor . . . not to indict" is one that belongs squarely within "the special province of the Executive Branch." Heckler v. Chaney (1985) (emphasis added). This "structural principl[e]" serves to "protect the individual" just as much as the Executive Branch. Bond v. United States (2011). By interpreting Rule 42 as authorizing courts to make their own decision to initiate a prosecution—and even to override a contrary decision by the Executive Branch—the Second Circuit's opinion not only arrogated a power to the Judiciary that belongs elsewhere. It allowed the district court to assume the "dual position as accuser and decisionmaker"—a combination that "violat[es the] due process" rights of the accused. Williams v. Pennsylvania (2016).

I've long thought that the Rules Enabling Act violated the non-delegation doctrine. If, in fact, this statute actually vested the courts of law with the power to appoint inferior officers that exercise executive power, then yes, the REA is unconstitutional. Ethan Lieb recently contended that the Federal Rules of Evidence may be unconstitutional on non-delegation grounds. Chad Squitieri raised similar issues with regard to the major question doctrine.

In Donziger's case, the Department of Justice offered another argument: the prosecutors are not "inferior officers" at all, but are "nonofficer employees in the Executive Branch." Gorsuch argues this position is inconsistent with Morrison v. Olson:

It is hard to square with our own precedent. See Morrison v. Olson (1988) (holding an independent counsel to be an inferior officer). And even overlooking all that, the notion that the Constitution allows one branch to install non officer employees in another branch would come as a surprise to many. Who really thinks that the President may choose law clerks for my colleagues, that we can pick White House staff for him, or that either he or we are entitled to select aides for the Speaker of the House?

In Morrison, Chief Justice Rehnquist wrote, "It is clear that [the independent counsel] is an 'officer' of the United States, not an 'employee.'" But the court-appointed prosecutors hold far less power than did Alexia Morrison. Seth Barrett Tillman and I discussed the concept of "employee of the United States" in the context of Robert Mueller. This issue is complicated.

Donziger's cert petition was initially distributed for the January 13 conference. It was rescheduled, and then was distributed for six conferences before the denial. Presumably, Justice Gorsuch tried to get two more votes for certiorari. In a normal case, Justices Sotomayor and Jackson could be expected to go along with a grant on a matter of such concern to criminal justice. Even counsel had cross-ideological appeal: Steve Vladeck was counsel of record, and he was joined by lawyers from Schaerr/Jaffe. But alas, this case involved the separation of powers, and potentially the non-delegation doctrine.  Indeed, it is commendable that two of the Court's more conservative members were willing to stand up for Donziger–a celebrity on the left, but a scourge on the right. The liberal justices, not so much. Justices on the right routinely pivot to the left. But the Justices on the left are seldom ambidextrous. Mr. Donziger's contempt citation will stand.