The US Supreme Court Monday declined to hear Steven Donziger v. United States, a case concerning a human rights lawyer charged with multiple criminal counts of contempt and prosecuted by special prosecutors.
Justices Neil Gorsuch and Brett Kavanaugh dissented and would have heard the appeal. Gorsuch argued that the appointment of the private attorneys as special prosecutors gave the judiciary branch the appointment power that belongs to the executive branch. Specifically, Article II of the US Constitution, which lists the powers of the executive branch, includes the power of appointment as solely executive unless Congress provides legal authority to the judiciary. He also raised the point that the appointment “allowed the district court to assume the ‘dual position as accuser and decision making’–a combination that ‘violates the due process’ rights of the accused.”
During Donziger’s criminal trial, the district court appointed private attorneys to prosecute some of the charges pursuant to Federal Rule of Criminal Procedure 42(a)(2). This rule allows a court to appoint a government lawyer to prosecute contempt, and if the government declines that request, the court can then appoint a private attorney to serve as the prosecutor. After failed attempts by Donziger to obtain a new trial, the District Court for the Southern District of New York sentenced him to prison for six months.
Donziger appealed his conviction to the US Court of Appeals for the Second Circuit, arguing that the appointment of special prosecutors violated the Appointments Clause of the US Constitution. The Appointments Clause requires that officers of the US like judicial nominees must be approved by the Senate unless they are “inferior officers.” Inferior officers can be appointed so long as Congress provides legal power to the judiciary appoint these positions. Donziger claimed the special prosecutors were inferior officers under the meaning of the Appointments Clause, and thus the district court lacked congressional authority to appoint them. The Second Circuit ultimately rejected Donziger’s arguments and affirmed the district court’s judgment. The appellate judges reasoned that while the special prosecutors were inferior officers, there was not an obvious error made by the district court even if Congress did not legally authorize this appointment of an inferior officer.