Can the judiciary appoint a special prosecutor to try someone that the Department of Justice refuses to prosecute? That’s the central question in Donziger v. United States, a case that the Supreme Court announced it will not hear on Monday.
That announcement leaves in place an appeals court decision, which effectively lets the courts decide to prosecute someone of their own accord, at least under certain circumstances. The Supreme Court made this announcement, however, over the objections of two justices — one of whom, Justice Neil Gorsuch, argues in a dissenting opinion that “the prosecution in this case broke a basic constitutional promise essential to our liberty.”
He’s got a point. Especially in an era where litigants with an axe to grind can choose which judge will hear their case, permitting the judiciary to decide who to prosecute — and then to hear the very same cases brought by its own court-appointed prosecutors — vests far too much power in unelected judges. If courts have this authority, it is likely to be abused by some of the most partisan judges in the country.
The Donziger case itself involves Steven Donziger, a New York attorney who, according to a federal court, defied several court orders. Eventually, the court referred Donziger to the US Attorney’s Office in Manhattan for prosecution, which “respectfully decline[d]” to bring charges against Donziger “on the ground that the matter would require resources that we do not readily have available.”
The court then invoked a federal criminal procedural rule, known as Rule 42, which empowers the court to “appoint another attorney to prosecute” an individual for criminal contempt of court when the Justice Department refuses to bring such a prosecution. Donziger was eventually convicted and sentenced to six months in prison.
But, as Gorsuch argues in his Donziger opinion, this prosecution raises grave constitutional questions. Typically, to convict someone of a federal crime, two branches of government must agree that the defendant deserves punishment. Prosecutors, part of the executive branch, must initiate a prosecution. And then a judge, a member of the judicial branch, must preside over the defendant’s trial. As Gorsuch writes, “the Constitution gives courts the power to ‘serve as a neutral adjudicator in a criminal case,’ not ‘the power to prosecute crimes.’”
In fairness, Gorsuch’s position is slightly overstated. The Constitution does provide that, under certain circumstances, “Congress may by law” vest the power to appoint prosecutors “in the Courts of Law.” But, while Gorsuch has a history of reading Congress’s authority to delegate authority to government officials far too narrowly, he makes a strong case in his Donziger dissent that Congress has not passed any law permitting court-appointed prosecutors to bring criminal contempt proceedings.
If the courts do have that power, moreover, that could remove an important check on the government’s power to send people to prison. A judge could potentially issue a completely lawless order stripping individuals of their legal rights, and then appoint special prosecutors to bring criminal charges against anyone the judge deems to be in defiance of the order.
The separation of powers issue in Donziger, briefly explained
One issue in Donziger is a dispute about the separation of powers between the executive and the judiciary. Historically, the Supreme Court has understood the power to bring prosecutions as a quintessentially executive branch function. As the Court said in United States v. Nixon (1974), “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”
Similarly, in Seila Law v. CFPB (2020) the Court held that “the ‘executive Power’ — all of it — is ‘vested in a President’” — a theory known as the “unitary executive,” which claims that any government official who wields executive authority must be responsible to the president of the United States. In practice, that means that if someone has the power to bring federal prosecutions, that individual must answer to either the president or to a presidential appointee — and the president or that appointee must have the power to fire that individual.
Yet the Court also ruled three decades earlier in Young v. United States ex rel. Vuitton et Fils SA (1987) that the judiciary has “inherent authority” to appoint prosecutors to try contempt of court cases. Without it, Young reasoned, the courts would have no authority “to punish disobedience to judicial orders ... without complete dependence on other Branches.”
Although Seila Law did not explicitly overrule Young, it is difficult to reconcile the two cases. And the US Court of Appeals for the Second Circuit, which heard the Donziger case, did a pretty poor job of it. The Second Circuit held that the court-appointed prosecution of Donziger did not intrude upon the executive branch’s exclusive authority because a federal statute gives the attorney general the power to supervise and remove all federal prosecutors — who remain part of the executive branch, even if they are appointed by a judge. So even if the courts can appoint a special prosecutor, the attorney general can always remove that prosecutor if the executive branch opposes the prosecution.
But, as Second Circuit Judge Steven Menashi argued in dissent, this attempt to reconcile Seila Law and Young completely undercuts Young’s reasoning. Again, Young held that courts must have the power to appoint prosecutors so that they are not dependent on the executive branch to enforce contempt orders. But, if the attorney general has the power to cut off these prosecutions, then courts are still dependent on the executive branch to enforce these orders.
In any event, the Supreme Court will likely have to decide, in a future case, whether Young must be scrapped entirely in the wake of decisions like Seila Law. For the moment, federal judges retain the power to appoint prosecutors at least some of the time. And that gives them an extraordinary amount of power over who will be fined or incarcerated.
Congress can empower judges to appoint prosecutors, but it is unclear if it did so here
Setting aside the complicated questions about which branch has authority over contempt of court prosecutions in the absence of a federal statute assigning this authority to one branch or the other, the Constitution does sometimes permit courts to appoint federal prosecutors — but only if Congress passes a law enabling them to do so.
The court that appointed a special prosecutor to go after Donziger relied on a court-created rule — Rule 42 of the Federal Rules of Criminal Procedure — and not an act of Congress, to justify appointing a prosecutor in this case.
That said, while Rule 42 is not an act of Congress, there is a federal statute, known as the Rules Enabling Act, which permits the Supreme Court “to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts.” And the Supreme Court exercised this statutory authority when it created Rule 42.
But even if the Constitution permits Congress to delegate its power to determine when courts may appoint prosecutors to the Supreme Court, the Rules Enabling Act has an important limitation. It provides that judicial rules enacted by the Court “shall not abridge, enlarge or modify any substantive right.”
And, as Gorsuch argues in his Donziger dissent, there are serious arguments that, by allowing the judicial branch to determine both whether someone should be prosecuted and then to try that case, Rule 42 abridges such a right. As Gorsuch writes, Rule 42 potentially allows a judge to “assume the ‘dual position as accuser and decisionmaker’ — a combination that ‘violat[es the] due process’ rights of the accused.”
So what’s at stake here?
It should be emphasized that the rule announced by the Second Circuit does impose an important check on the judiciary. Though it gives the courts the power to initiate a prosecution for criminal contempt, the attorney general may still shut that prosecution down after it is underway.
But even with this limit on judicial power in effect, the Second Circuit’s decision in Donziger changes the balance of power between people accused of crimes and their government. As Menashi writes in his dissenting opinion, the Second Circuit’s rule “allows the judicial appointment of additional executive branch prosecutors — paid out of the judiciary’s budget — when the U.S. Attorney’s office does not want to devote its own resources to a case.”
It also potentially allows rogue judges to initiate prosecutions that the executive would not choose to initiate on its own, but that it may also be reluctant to terminate due to political pressure from the president’s voters.
Gorsuch’s Donziger opinion was joined by Justice Brett Kavanaugh, meaning that there are at least two votes on the Supreme Court to roll back the federal judiciary’s authority to appoint prosecutors. If a federal trial judge seriously abused this power, the Court’s three liberals could potentially join with Gorsuch and Kavanaugh to shut that abuse down.
But the Court’s decision not to hear Donziger means that, at least for the time being, lower federal court judges retain significant power to decide who should be prosecuted.
One name that looms over this dispute about whether judges can initiate prosecutions is Matthew Kacsmaryk, a Trump-appointed judge in Texas who is widely expected to issue a decision any day now seeking to remove a common abortion drug from the US market. Kacsmaryk has, to put it mildly, a record of reading the law creatively to advance conservative causes. He also has a record of asserting jurisdiction over cases and parties that he does not have any lawful authority over.
Armed with the additional power to initiate prosecutions, even if this power is limited to contempt of court cases, a partisan judge like Kacsmaryk could potentially issue a nationwide injunction prohibiting anyone from performing an abortion, even in states where it is legal. Then, because anyone who violates a court order can potentially be held in contempt, Kacsmaryk could appoint his own hand-picked prosecutors to target anyone who violates his self-imposed abortion ban.
If Kacsmaryk, or a similarly partisan judge, attempted this move today, Attorney General Merrick Garland would almost certainly fire any prosecutor that Kacsmaryk appointed. But, in a Republican administration, the attorney general would likely be much more reluctant to exercise such authority. Indeed, a Republican-led Justice Department might welcome the appointment of an array of new prosecutors focused solely on prosecuting abortion providers.
As Alexander Hamilton wrote in the Federalist Papers, the judiciary is not supposed to have this much power. It is supposed to be, in Hamilton’s words, “the weakest of the three departments of power,” in part because it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Gorsuch is right to warn us against a regime that upends this balance of power.