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. Yellen, Arthrex, Seila 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.

Comments

[Gandydancer]

Blackman needs to reacquaint himself with "[Read more]".

In all fairness, not just him.

[DRM]

That some government employees are simply paid to engage in a pursuit does not make the pursuit an exclusive function of the government, much less the branch that employs them. If it is an action that historically any citizen may pursue, using no more power than any citizen is allowed to exercise, it is not a power of the government or of any branch thereof.

So, the correct solution is to note that private prosecution was a standard feature of English and colonial law prior to the Founding, and of state law at the Founding. Thus someone acting as a prosecutor is not using any part of the executive power of the United States, but is instead exercising a universal prerogative of the people of the United States.

And any and all Supreme Court rulings to the contrary, treating the power of prosecution as a government power or more exclusively an executive branch power, are invalid and should be immediately reversed and vehemently disavowed.

[Gandydancer]

That private citizens were historically entitled to prosecute anyone for anything is news to me. Got a cite for that?

[Martinned]

https://www.cps.gov.uk/legal-guidance/private-prosecutions

[DRM]

As is often the case, a decent starting place is the Wikipedia article, which has its own references to scholarly sources (like https://doi.org/10.2307/845749 ).

[Stephen Lathrop]

DRM, your take on that strikes me as correct but confusing.

You are right to look in the direction of national sovereignty for answers. A problem is the reference to private prosecution. I am not sure what to make of that in historical context. I have never seen a satisfactory explanation to say how that private power of prosecution came to be, or how in the United States it fits into either a scheme of separation of powers, or into the notion of a collective sovereign power wielded jointly by the People.

References to colonial history are apt to confuse the question more than clarify it. Prior to the Declaration of Independence's announcement of joint popular sovereignty as a new thing in the world, an entirely different notion of sovereignty prevailed in the colonies. Arguably, post-DoI survival of a notion of private prosecution was a historical hold-over. It manifested a situation where it took considerable time for a new theory of sovereignty to displace customary practice—with that customary practice based on a previous-but-superceded theory of sovereignty.

But even if all that is correctly inferred, where private prosecution fit into that former theory while it was still properly practiced seems another challenge to understand. I suspect if you looked into it, you might discover it has something to do with the rights of an English freeman, as those were understood from medieval times into the 17th century, or maybe into the 18th century. I doubt there was ever a time in Britain when a non-freeman could successfully prosecute anyone, but I have not studied that. Maybe you know of examples to the contrary. Do you suppose you can find an example where a servant ("servant" meaning as it did then a non-freeman, and especially anyone working for wages no matter in what capacity) could prosecute and win a case against a baron? I think that at best that might have worked in some instance where the accused was on the outs with someone more powerful.

Those latter centuries I mentioned, by the way, featured the interval where everything about state sovereignty in Britain went seriously up for grabs, in a tussle which arguably continued at lower intensity after 1776, but lasted into the early part of the 20th century. While that happened there, the notion of joint popular sovereignty became so ingrained here, and so universally accepted, that it almost put itself out of conscious consideration.

Since at least 1825, the operators of American constitutionalism, and especially the legal community, have leaned heavily on doctrines about separation of powers, to the detriment of the notion of a continuously active sovereign power superior to the others. In consequence, the founding era notion of a continuously active sovereign power which rules the U.S. has faded.

To many today, government has begun to look by default like the actual sovereign. That amounts on a theoretical basis to a notion of decapitated constitutionalism. It leads to no end of trouble and confusion when attempts are made to analyze the meaning of founding era documents, in which the notion of an overriding sovereign power is both presumed and made explicit in the text.

I suggest that today's OP by Blackman is an example of that kind of confusion. He seems to be trying to make separation of powers do the work of an active national sovereign, with absolute power—especially including power to punish—held jointly by the People themselves.

[Martinned]

Private prosecution is not a collective right of the people, but an individual right of individual people. It's like suing someone in tort (or qui tam), except with the possibility of a prison sentence.

[Stephen Lathrop]

Martinned, seems like you are making a point I may not understand. I read what you said as a caution that private prosecution is a poor fit for a notion of punishment by a joint popular sovereign. Which is one of the points I meant to suggest. But if you meant something else, I would appreciate the benefit of it if you care to say more.

[Martinned]

That sounds about right. I think that linking private prosecutions in the 18th century and before with some notion of popular sovereignty is misguided (if for no other reason than that England doesn't do popular sovereignty even today). It's the government that took over the prosecutor's job in the same way that it took over policing, teaching, healthcare, looking after the poor, etc.

[Dilan Esper]

You are right to look in the direction of national sovereignty for answers. A problem is the reference to private prosecution. I am not sure what to make of that in historical context. I have never seen a satisfactory explanation to say how that private power of prosecution came to be, or how in the United States it fits into either a scheme of separation of powers, or into the notion of a collective sovereign power wielded jointly by the People.

The actual answer to this is easy? All this stuff about the "People" is BS. When, say, California brings a case on behalf of the "People", e.g., People v. OJ Simpson, they aren't actually "the People". They are the government, and they derive their power from the fact that they have a police force available to arrest people and corral them into court, plus the power to compel people into service as jurors. It has nothing to do with "the People". Prosecutions can be brought even if "the People" oppose them. Nobody asks "the People". "The People" is a fiction.

And once you understand that, private prosecutions at the Founding are EASY to understand. Back then there wasn't a gigantic bureaucracy dedicated to the prosecution of crimes. There weren't District Attorneys offices staffed with hundreds of prosecutors to handle all of the cases. So, the system allowed private prosecutions- because all that crap about "the People" was just BS to fool rubes like you into thinking that our government didn't derive its sovereignty the way every government derives it- because it can kill you or imprison you if you try to assert competing sovereignty.

Things work so much more elegantly without your silly theories.

At any rate, I don't have any opinion on the constitutionality of private prosecution, but, suffice to say, as prosecution was professionalized and bureaucratized, we got away from the practice. Which is a nice story about both progress and the rise of bureaucracy, and has nothing to do with completely dumb theories about who the sovereign is.

[Brett Bellmore]

I absolutely agree: It's easy to forget that, all political theories aside, actual real world governments are just, at the bottom, highly evolved protection rackets, their predation lightly constrained by the need to prevent their victims from revolting.

Our liberty doesn't rest on political theories like popular sovereignty, as useful as they are for organizing and reasoning about government. It rests on the extent to which we can maximize those constraints.

If political theory discourages maximizing those constraints, it's dangerous to our liberty even if the theory says it is pro-liberty.

Mind, widespread belief in an ideology illegitimizing certain areas of governmental action IS one of those constraints. But Lathrop's theorizing fails on that account.

This is why I'm such a hardliner on gun control. An armed populace is one of those constraints, and efforts on the part of government to abolish that particular constraint signal that the government is starting to revert to a more primitive level of protection racket, where the "or else!" aspect of government rule isn't going to be so concealed.

[Martinned]

An armed populace is one of those constraints

It really isn't. Don't be silly.

[Rossami]

That's ... a very creative argument. I'm not sure that particular principle was an incorporated part of common law at the time of Founding, though. If that principle had already been abandoned, the UK precedents would be inapplicable.

I don't remember anything in the Federalist or Anti-Federalist Papers on it. This will take some digging. Thank you for posing an interesting puzzle.

[Lee Moore]

I think DRM makes an excellent point, but I think, nevertheless, that it misses the mark.

Plainly a private prosecution is not conducted by the executive branch of government. But it when a duly appointed DOJ prosecutor conducts a prosecution, that is conducted by the executive branch. So far, so good.
But a prosecution is an executive act whoever is doing it. When you mow your lawn, that’s execution.
So when the judicial branch appoints a prosecutor, they’re appointing someone to execute something. That’s not their turf and it violates the separation of powers.
So the point is that prosecution is executive in nature. That doesn’t mean that all prosecutions have to be conducted by the executive branch of government, for private prosecutions show that prosecution doesn’t have to be a government function.
But if prosecution is done by the government, then since the task is executive in nature, it has to be done by the executive branch of government.

Private prosecution is ok, judicial prosecution not.

[DRM]

Maybe?

I mean, the way I see it, what is granted to the President in the Constitution is not an exclusive competence to engage in executive acts, but the exclusive vesting of "the executive Power". And if private citizens could lawfully prosecute cases in Federal court (and they did so for years after the adoption of the Constitution), the power to do so is not part of the Federal "executive Power" that was vested exclusively in the President, and there is no encroachment on that exclusive grant when any other branch engages in the act.

But it's been a long while since I read Montesquieu or anything else that would help enlighten the original meaning of "the executive Power".

[Noscitur a sociis]

And if private citizens could lawfully prosecute cases in Federal court (and they did so for years after the adoption of the Constitution)

Did they? Section 35 of the Judiciary Act of 1789 (i.e. the act that created federal courts in the first place) said the U.S. Attorney in each district was responsible for “prosecut[ing] in such district all delinquents for crimes and offences, cognizable under the authority of the United States”, which sounds to me like it would preclude private prosecution. But I’m anything but an expert in this area, and I’d be fascinated to learn more if you know of counterexamples.

[Lee Moore]

I'm not sure that those words give exclusivity. Thus, as you will know, Section 26 of the United States Marine Corps Act of 1952 provides that the Marine Corps "must provide each recruit with two pairs of new boots, to be replaced annually."

There's nothing in that which prevents any recruit's Mom from buying her son an extra pair of boots, either as a spare, or to replace a pair he lost in a drunken rout, the lack of which might land him latrine duty if discovered in the next inspection.

[Lee Moore]

I disagree, for the reasons previously stated.

I mean, the way I see it, what is granted to the President in the Constitution is not an exclusive competence to engage in executive acts, but the exclusive vesting of “the executive Power”.

Yes, so far so good. It is not just the Federal government that has competence to engage in executive acts. I have such competence, as do you. The only exclusivity about the Federal government's competence to do executive acts, is when it comes to executive acts by the Federal government.

And if private citizens could lawfully prosecute cases in Federal court (and they did so for years after the adoption of the Constitution), the power to do so is not part of the Federal “executive Power” that was vested exclusively in the President

Still good. But only because "the power to do so" refers to the private citizen's power to prosecute, not to the aggregate of all such powers. The aggregate power to prosecute in Federal Court is composed of :

(a) The Federal government's power to prosecute and
(b) anybody else's power to proecute (ie private citizen's power.)

(b) is not part of "the executive Power" of the Federal government.

But (a) is - because it is part of the Federal Governments's power to do an executive act. Whatever powers the Feds have to do executive acts belongs to the executive branch, and so mutatis mutandis for legislative or judicial acts.

and there is no encroachment on that exclusive grant when any other branch engages in the act.

But this is wrong. The executive branch has exclusivity over executive acts by the Federal government. It does not have exclusivity over executive acts by persons or entities which are not part of the Federal government - eg you, me, the State of Texas, the Republic of France, IBM, Stanford University or Superman.

[Gandydancer]

Of course the most famous recent example of a judge overstepping the separation of powers was Emmet Sullivan vs Michael T. Flynn.

[The Margrave of Azilia]

I can't find anything in the Constitution that suggests the way to protect civil liberty and separation of powers is to confer on executive officials the power to block a criminal-contempt prosecution (except through the pardon power, of course).

What I *do* find is this from the 6th Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury" etc.

Here is a civil-liberties issue we can look at. The courts feel at liberty to ignore the literal language of the 6th Amendment and convict people without a jury trial in cases of criminal contempt (unless they want to reserve the right to impose more than a six months' sentence, or unless Congress has chosen to provide a jury trial in some class of cases).

Ah, but you say the "all" in "all criminal prosecutions" doesn't really mean "all"? Courts can punish people for criminal contempt without a jury? OK, then if you can carve out an exception from the express constitutional language in the name of making criminal-contempt prosecutions easier, it shouldn't be too hard to carve out an exception from a court-created separation-of-powers doctrine to serve the same laudable purpose.

Of course, when one judge files criminal-contempt charges, a different judge should hear the charges (hopefully with a jury, but let's ignore that point for now). What would be wrong with having the first judge - the one who brought the charges - designate a prosecutor to make the case against the defendant?

Why should some official in the executive branch be able to veto such a prosecution? That would allow them to shield executive-branch officials from criminal contempt charges no matter how egregious the misconduct may be.

[Brett Bellmore]

"I can’t find anything in the Constitution that suggests the way to protect civil liberty and separation of powers is to confer on executive officials the power to block a criminal-contempt prosecution (except through the pardon power, of course)."

I don't think it's "the" way, but certainly it is "a" way; Just as the judiciary can refuse to try cases they think unjustified, blocking executive abuses, the executive can refuse to prosecute these cases, blocking judicial abuses.

You are, of course, dead on about the Supreme court's gross abuse in the case of the 6th amendment. It's not as though 'all' was a complicated concept, full of nuance. This is about as clear a case of the Court just not liking what the Constitution says, and thus refusing to uphold it.

They're not covering themselves with glory in the case of the 7th amendment, either.

[Noscitur a sociis]

They’re not covering themselves with glory in the case of the 7th amendment, either.

Do go on…

[David Nieporent]

Of course, when one judge files criminal-contempt charges, a different judge should hear the charges (hopefully with a jury, but let’s ignore that point for now).

A different judge did hear the charges in the Donziger case. Judge Kaplan punted the trial of the criminal contempt to Judge Preska.

[David Nieporent]

Why should some official in the executive branch be able to veto such a prosecution? That would allow them to shield executive-branch officials from criminal contempt charges no matter how egregious the misconduct may be.

I mean, the pardon power already permits them to do so. See Joe Arpaio for an example.

[The Margrave of Azilia]

I discuss that point below.

[Stephen Lathrop]

Blackman, where in the scheme of separation of powers do you find an explanation for the fact that each of the 3 branches of government has power to charge for contempt?

Also, when you hear of a case styled, "The United States vs. Someone," who do you think, "The United States," refers to?

Alternatively, when you hear of a case styled, "The People vs. Someone," who do you think, "The People," refers to?

[Dilan Esper]

Also, when you hear of a case styled, “The United States vs. Someone,” who do you think, “The United States,” refers to?

It refers to the government, and the fact that you don't understand this goes a long way to understanding why you are a crank with no connection to our actual legal system.

[TheAmazingEmu]

I do think it's often forgotten, but there are overlapping functions between each of the branches of government (I believe this is even pointed out in the Federalist Papers). The veto is a legislative function, the advice and consent clause is an executive function. Contempt is often hard to decide since it's something courts have always done. To the extent it's a prosecutorial function (and, therefore, executive function), it's one that's traditionally been held by courts and, under tradition and case law, held by Congress. I think the big issue is that courts want to delegate the act of prosecuting the contempt to a prosecutor in order to maintain neutrality. I think that's a laudable goal and it would be unfortunate to suggest that they should be exercising their summary contempt power instead and not having a formal hearing conducted by a prosecutor. That doesn't seem like an ideal response to this separation of powers issue.

[Gandydancer]

“Why should some official in the executive branch be able to veto such a prosecution?”

If prosecution is an executive branch function then your wishing it were otherwise on “desirable policy” grounds ought to be unavailing.

[The Margrave of Azilia]

As I indicated, there’s a perfectly obvious way for the executive branch to stop courts from abusing their criminal contempt power.

The President can grant pardons in criminal contempt cases (as acknowledged in Ex Parte Grossman, 267 U.S. 87 (1925)). If a federal judge is harassing poor Donziger, President Biden can grant Donziger a pardon, even prior to conviction. That would stop the judge in his tracks.

Likewise, if a federal judge is prosecuting someone in the executive branch for criminal contempt, and Biden thinks its unfair for the judge to go after one of his administration's own people, then a Presidential pardon would also be permitted.

What Gorsuch wants is for the President to keep his hands clean and leave the dirty work of stopping the prosecution to some lower-level official.

No, don’t palm it off on some someone else, use the pardon power, with a decree bearing the President’s signature so he can be politically accountable. Even the lazy journalists in the Washington press corps may feel obliged to cover a decision made personally by the President, and so the public will be better informed about what’s going on.

That would answer any objections to the danger of an out-of-control judge ignoring the executive branch in these matters.

[The Margrave of Azilia]

"If prosecution is an executive branch function then your wishing it were otherwise on “desirable policy” grounds ought to be unavailing."

That's not what I said, and I didn't use the phrase you put in quotation marks.

If anyone's wishing away an inconvenient part of the Constitution, it's those who ignore the phrase "all criminal prosecutions" in the Sixth Amendment. My point on that amendment is that if we can create an exception to this plain language for the higher objective of making criminal-contempt prosecutions easier, then we can all the more create an exception from a judge-created doctrine to facilitate such prosecutions.

[Stephen Lathrop]

Margrave, suppose for the sake of argument that in American constitutionalism properly understood that the power to punish was regarded as a continuously active sovereign power held by the People themselves. Do you think the Constitution constrains what the People may do with that power?

If you see a conundrum implied by that question, the next question is whether it can be legitimate that contrary to separation-of-powers doctrine—which cannot be read against an active sovereignty wielded jointly by the People—some powers exercised by government are in fact delegated sovereign powers, exercised with the full scope and effect which only the sovereign commands—for instance in congress, the impeachment power, or the power to try impeachments, and in the executive the pardon power, and in all 3 branches the power to punish contempt.

The summary question is whether the notion of separation of powers can be made to do the work of an exhaustive catalog of all government power? How could that be argued without implication that sovereign power could not be continuously active, and thus that government itself had become the national sovereign?

[The Margrave of Azilia]

I tried Google Translate, but it can't interpret these remarks.

[Dilan Esper]

I have to say, I love the fact that when something comes along (here, the undisputed history of private prosecution) that completely blows Lathrop's theories out of the water, he just keeps right on plowing ahead rather than asking himself any questions about what that means.

[Brett Bellmore]

When he goes over two paragraphs, I just don't bother reading it. I'm sure there's some internal consistency present, but it's totally unconnected to the real world.

[Noscitur a sociis]

And that’s Brett Bellmore talking!

[David Nieporent]

The problem is that the Socratic method works best if one is Socrates. Lathrop… isn't.

[Noscitur a sociis]

If anyone’s wishing away an inconvenient part of the Constitution, it’s those who ignore the phrase “all criminal prosecutions” in the Sixth Amendment.

I’m not sure I see the connection between the two issues. A jury could have been assembled for the trial without diminishing th pe authority of the private prosecutor or judge in any way that’s particularly obvious to me.

[Social Justice is neither]

That is fine when it's third parties but when it's about holding their own members accountable one conflict flies directly into another.

[Drewski]

"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?"

If Congress specified such an arrangement, it would certainly be constitutional. Gorsuch is off his rocker to think that the executive appointing judges is fine but clerks would be a bridge too far.

[Rev. Arthur L. Kirkland]

Who gets to hire (or fire) the court's clerk, security guard, and janitor?

[Noscitur a sociis]

The constitution expressly authorizes (and indeed, requires) the president to make judicial appointments. It doesn’t authorize the president to appoint the judges’ employees.

[TheAmazingEmu]

I think this distinction between officers and employees is an artificial one. The Constitution makes a distinction between principal officers and inferior officers. Inferior officers can be appointed by the President, by the courts, or by the heads of departments. I think a clear answer to how hiring decisions are made should be that the department heads get to make those decisions as long as that's what Congress has decided. Under that theory, the decision of who gets to make that hiring decision can be decided by Congress, but they can pick between the President, the courts, or the head of a department.

[questioner7]

"Justices on the right routinely pivot to the left. But the Justices on the left are seldom ambidextrous." -- how is this case an example of that? Here, liberal justices declined to support "a celebrity on the left, but a scourge on the right" -- going against ideology.

[apedad]

It's kinda funny that someone would say Rule 42 is unconstitutional when the SUPREME COURT established the rule (and who would [and just did] rule on the Rule's constitutionality).

At the same time, I tend to agree that the law enabling the SC to establish the rule should be changed as it is the perogative of the executive branch to prosecute - or not.

[Brett Bellmore]

Nothing funny about it; Most people are quite capable of understanding that the Court is capable of being "wrong" about the Constitution. It's not like they don't frequently demonstrate this capacity, after all.

[apedad]

Wrong or right are just opinions that anyone can ignore.

Judicial decisions about constitutionality are actual actionable determinations.

If the SC sez it’s constitutional/unconstitutional, then that’s it.

[MatthewSlyfield]

"If the SC sez it’s constitutional/unconstitutional, then that’s it."
Until the SC changes its collective mind.

[Brett Bellmore]

There's a pretty big difference between, "If the SC sez it's constitutional/unconstitutional, then it is", and "If the SC sez it's constitutional/unconstitutional, then that's how the legal system will treat it."

It's not a difference that will keep you out of jail, of course, but if the Supreme court were definitionally incapable of being "wrong", there'd be no point in staffing it with lawyers, a chimp with a Magic 8 Ball would do.

[Joe_dallas]

concur - prime examples of the court being wrong about the constitution - Kelo, gamble,

[Brett Bellmore]

Dred Scott, Slaughterhouse, Kelo, even if we're sticking to cases that were uncontroversially wrong.

[Dilan Esper]

I think the answer is exactly what Gorsuch says- it's NOT that the federal rules are unconstitutional; it's simply that if a rule is substantive it isn't authorized by the Rules Enabling Act. Whether Congress can pass substantive rules of decision for diversity cases is an interesting question, but the Rules Enabling Act by its very terms doesn't authorize that so we don't have to answer that.

But we do, according to Gorsuch, have to limit the scope of any federal rule that DOES affect a substantive right. (In that regard, Hanna v. Plumer might be wrongly decided or at least poorly reasoned.)

[Dan Schiavetta]

It would render a court impotent if it couldn't punish for contempt. But why is a referral to the Justice Department is necessary? The court has its own powers of contempt.

[apedad]

Depends on the type of contempt.

"A criminal contempt of court charge functions as an entirely new charge against the defendant and, therefore, defendants charged with criminal contempt are afforded all the usual privileges of other criminal defendants. These include the right to a trial by jury, to examine and to call witnesses, and to testify on one's own behalf."

[Dilan Esper]

And I would add, I think Prof. Blackman has a good point about sending such a contempt trial to a different judge, at least unless it is a direct contempt in open court (where there's a long established tradition that the judge can adjudicate it him- or herself).

[MatthewSlyfield]

"where there’s a long established tradition that the judge can adjudicate it him- or herself"
Isn't that only for civil contempt, not criminal contempt?

[David Nieporent]

No.

[David Nieporent]

And I would add, I think Prof. Blackman has a good point about sending such a contempt trial to a different judge, at least unless it is a direct contempt in open court (where there’s a long established tradition that the judge can adjudicate it him- or herself).

Yes, but even when he's right, he's wrong. The contempt trial was sent to a different judge.

[Dr-P]

a judge trying to enforce a contempt against a private citizen is one case. Note the issue of the judge recusing is a solid step in the right direction.

Trying a contempt against a executive branch employee introduces another twist. Here the interests of the branch may not suit the public's interests.

Now consider the House or Senate trying to enforce their subpoenas or contempt against a Attorney General, in which DOJ refuses to bring the case. If the DOJ will not enforce, then the power of the Congress is stolen from them. No one would argue that the Congress does not have the power to investigate or oversee the executive branch.

[Martinned]

No one would argue that the Congress does not have the power to investigate or oversee the executive branch.

I think you will find that lots of people, including Josh Blackman, have argued at least a version of that.

[Martinned]

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.

This is the legal equivalent of someone insisting that increasing the minimum wage increases unemployment because the theory says it must be so, even though empirical evidence says it doesn't. Theories are great, I'm a big fan, but if they make predictions that are clearly contradicted by experience you need to revise your theory, not your experience.

[Brett Bellmore]

Actually, theory says that increasing minimum wage only increases unemployment if you raise it above the market wage. Below that point it has no effect. And, of course, it takes a while for the unemployment to set in.

[Martinned]

If only the people who do empirical research on the effects of minimum wage hikes had thought of that!

[Brett Bellmore]

You do know that 'empirical research on the effects of minimum wage hikes' is mostly done by people who are trying to make excuses for why they aren't really damaging, right? They're not looking very hard for the damage.

Say the market wage for a hamburger flipper is $10/hr, and the amortized cost of a hamburger flipping robot is $12/hr. If you raise the minimum wage to $13, it may make economic sense for the burger chain to plan on switching to robots, but it's not as though they're going to shut down all their burger joints until they can get robots installed. So the immediate effect on employment is going to be negligible.

Yeah, the burger flippers will get paid $13/hr. For a while. While on the margin fewer burger joints get built, and existing burger joints will be retrofitted to use robots, that's not going to happen overnight.

You could be years seeing the effects, unless the hike is so large that they decide that shutting their doors until they can install the robots actually IS the cheaper option.

[Dilan Esper]

You do know that ’empirical research on the effects of minimum wage hikes’ is mostly done by people who are trying to make excuses for why they aren’t really damaging, right?

This problem exists in some fields to be sure, but is totally wrong about the minimum wage. The minimum wage has been studied by both liberal and conservative economists.

[Social Justice is neither]

And leftists like you consistently lie about the results, make excuses or design the parameters to avoid recognizing the downsides in the analysis.

[Brett Bellmore]

You have heard about the replication crisis, I hope? Isolated studies today are pretty much without any value, on account of the whole field of science being rotten with worthless 'research' that doesn't stand up wen examined.

[Joe_dallas]

Brett - Its not really a replication crisis as much as reaching erroneous conclusions with the existing data or using methodology that designed to reach erroneous results.

Prime example is the recent gas stove / asthma study. They used the population attribution fraction methodology which is rarely robust (completely invalid) when there are multiple cofounding variables.

[Brett Bellmore]

I will agree that it's not just the replication crisis, though I think that's a factor.

You see that sort of methodological error all the time in ideologically fraught research, where not arriving at the 'right' conclusion isn't acceptable. It pretty much defined the sort of firearms research the CDC used to pay for, that led to the Dickey amendment.

[Sarcastr0]

'isolated studies are pretty much without value' is not the upshot of past replication issues.

And those issues are largely in the medical field; applying them blithely to economics is not indicated.

In reality, this is just denying science you don't like. I see the below you agree with Joe that economics you don't like should be ignored as a hoax done for ideological reasons.

The work you do to keep your reality simple is impressive.

[Brett Bellmore]

I take it you didn't read the link? Replication is at its worst in social science, but no field is really immune.

Economics had, for studies that were actually checked, about a 40% non-replication rate. That's for papers published in fairly prestigious journals.

Sure, that was better than for social science, (Which is about as replicable as a roll of the dice.) but still pretty pathetic. At a 5% cutoff for significance, (Which is, IMO, irresponsibly high.) they OUGHT to only be getting 5% non-replication! They were getting 8 times that many studies failing to replicate.

So, I stand by my position: Isolated studies should pretty much be ignored, outside of maybe physics, where they take statistical significance seriously.

[Sarcastr0]

Fair enough; I sit partially corrected. But be aware that's not the replication crisis as people talk about it.

But the fact remains that there are quite a few studies about minimum wage. Only one comes out like you like it to, and it's 30 years old.

We're not talking about an isolated study. What we are talking about is your outcome-tuned skepticism.

At a 5% cutoff for significance, (Which is, IMO, irresponsibly high.) they OUGHT to only be getting 5% non-replication!
Spoken like an engineer. Science is a groping process, and there are always hidden variables.

[David Nieporent]

You do know that ’empirical research on the effects of minimum wage hikes’ is mostly done by people who are trying to make excuses for why they aren’t really damaging, right? They’re not looking very hard for the damage.

You know that, but you know lots of things that aren't so. All of which seem to coincidentally line up with a conspiratorial view of the world.

But Martinned is wrong too; plenty of studies find such negative effects on employment.

[Joe_dallas]

the effect of minimum wage hikes are highly distorted by the advocates claiming little or no effect on employment rates.

Card Kruger study is excellent example of distortions.

Common theme is the minimum wage studies is that the employment rates dont change. What is omitted in the headlines of the pro minimum wage increase studies is total hours worked drop, which is exactly what the supply and demand curves predict.

[Sarcastr0]

Bipartisan results can be thrown out as ideologically motivated if you read this one disputed ideological paper.

No one does it like you, Joe!

[Brett Bellmore]

Now do magistrate "judges".

[Dilan Esper]

Rulings not final, merely recommendations.

[Brett Bellmore]

So trials don't need to be carried out in front of actual section 3 judges, those guys can just kick back and rubber stamp the work of pseudo-judges who bypass Presidential nomination and Senate confirmation? Nothing problematic about that?

Well, I suppose in a world where Senate staffers are casting votes for hospitalized Senators, that might pass the smell test.

[MatthewSlyfield]

"So trials don’t need to be carried out in front of actual section 3 judges, those guys can just kick back and rubber stamp the work of pseudo-judges who bypass Presidential nomination and Senate confirmation? Nothing problematic about that?"

Administrative Law Judges.

[David Nieporent]

So trials don’t need to be carried out in front of actual section 3 judges,

Not if the parties consent. Otherwise, they do need to be carried out in front of actual Article III judges.

[Noscitur a sociis]

I’m not sure you understand what magistrate judges do.

[LawTalkingGuy]

Lol. You're still on this stupidity?

[Bored Lawyer]

"How can a trial judge remain neutral in a prosecution where he personally appointed the very prosecutors who are bringing the charges."

By referring the matter to another judge for trial. Which does not take care of the separation of powers issue, but does deal with the apparent conflict/unfairness issue.
In fact, Rule 42 sometimes requires this: "If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents."
That should be broadened to include all cases where the judge appoints the prosecutor.

[Martinned]

By the same logic, it's pretty unbelievable that US judges (as I understand it) typically decide on their own recusals.

[The Margrave of Azilia]

““If the criminal contempt involves disrespect toward or criticism of a judge, that judge”

From the standpoint of a judge with a healthy ego, what kinds of criminal contept *don’t* involve disrespect to him?

[Dilan Esper]

In theory, the type of contempt that Donziger engaged in doesn't. He simply failed to comply with a document production order. This happens all the time and nobody thinks judges are unable to adjudicate these.

I think it's correct that it's the judicial appointment of the prosecutor that changes things.

[ReaderY]

The obvious scenario is where the entire administration thumbs its nose at the judiciary and won’t do anything it says.

I find myself somewhat sympathetic to emergency powers that prevent the complete flouting of constitutional rights. In dealing with segregation, courts had to more or less invent emergency powers to prevent e.g. states nominally privatizing whole government departments (e.g. school systems, prosecutors) to defeat state action claims; releasing prisoners directly to lynch mobs (also to defeat state action); inventing new procedural rules to provide independent state grounds to defeat federal review, and more.

Here there is a danger the Executive could totally ignore court orders wholesale and then claim there’s simply nothing courts can do about it because seperation of powers.

I think emergency workarounds need to be strictly limited to genuine emergencies. While in this case Donovan defied the court, it’s not clear that doing so violated anybody’s fundamental constitutional rights. I think any court-appointed prosecutors shoild be limited to particularly egregious cases where individual rughts have been trampled on, the rights of parties external to the court, and shouldn’t be done solely to vindicate a court’s own dignity (so that, among other things, courts can’t be accused of pursuing their own interests).

I also think they should be limited to cases where Executive prosecutorial discretion is exercised in a particularly self-serving way, so that the Executive is protecting itself and allowing itself to flout the courts. Here, there wasn’t anything particularly self-serving about the Executive decision not to prosecute.

[Brett Bellmore]

"Here there is a danger the Executive could totally ignore court orders wholesale and then claim there’s simply nothing courts can do about it because seperation of powers. "

Isn't this the sort of thing Congress has the impeachment power to deal with?

[loki13]

While Martinned, supra, confused the issue with the analogy to minimum wage, I think that it bears repeating-

If you ever want to see just how dangerous people like Blackman are to the actual practice of law (something he knows precious little about), just pay attention to the fact that he loves to drop such bon mots as his ideas that the Rules of Evidence and Procedure are unconstitutional. Because of, you know, "major questions" (HA!).

[Ridgeway]

There is also this doozy:

"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."

So in a situation where the judge initiates the charges, and presides over a bench trial on those charges, the method of appointing the prosecutor is the big issue?

[loki13]

I mean, yeah!

Everyone knows that in states where the judges appoint the defense counsel, no one ever goes to jail.

...that's what happens, right? Like Blackman, I'm just going to spitball things without thinking about how it works in practice.

[LawTalkingGuy]

Well he's dropped hints that Gideon is wrongly decided, so he would probably say that appointing defense counsel is both unconstitutional and ethically suspect...

[LawTalkingGuy]

Weirdly that's one of his better takes because at least it's consistent even if it is stupid and impractical. I mean the hard-core non-delegation people don't have a good answer for why the administrative state is illegal but federal rules of practice are constitutional since they both set out rules of general applicability that have the force of law.

[Bored Lawyer]

"I think emergency workarounds need to be strictly limited to genuine emergencies."

Problem is, govt. officials love power, and will have an incentive to label any problem a "genuine emergency."

I just watched a video about Ireland during WWII. Their official policy was neutrality, although they sometimes supported the Allies. But near the beginning of the war, they declared an "emergency" and authorized near dictatorial powers to the government to enforce neutrality. Including heavy censorship of the press. The government forbade news reports of Nazi atrocities, for fear that would undermine public support of neutrality.
"Emergency" is an excuse for a great deal of power-grabbing.

[OtisAH]

“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.”

You have to love every time Josh stomps on his own dick within the same paragraph. We get the implication that DOJ begged off the case because it was a case against DOJ employees. We then get a link in the sentence where he tells us the case was dismissed. And if you click the link it leads to an earlier Josh post (of course) that begins:

“In June, I blogged about an unusual case. A U.S. District Court judge held in contempt several U.S. Marshals. The dispute, which always seemed murky to me…”

So we learn that perhaps the DOJ begged off because it was a dog of a case. But hey, when life gives you an opening to slag the feds you don’t stand there staring, you walk through it! Way to go, buddy.