On Monday, Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, dissented from the Supreme Court’s decision not to review a lower court case involving the environmental lawyer Steven Donziger, who was sentenced to six months in prison for contempt of court.
For Gorsuch and Kavanaugh, the basic constitutional principle of separation-of-powers was violated when the Department of Justice declined to prosecute Donziger, but the district court judge took it upon himself to appoint a special prosecutor. In their view, the judge assumed “the ‘dual position as accuser and decisionmaker’ — a combination that ‘violat[es the] due process’ rights of the accused.”
“However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty,” argued Gorsuch in the dissent. “In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.”
The facts of the case go back to the 1990s, when Donziger represented Indian tribes suing Chevron, then named Texaco, for polluting the Amazon rainforest. At Chevron’s urging, the case was moved from New York to Ecuador, but the company later came to regret that move after Donziger won a stunning judgment of $8.6 billion. Chevron went on the counteroffensive in New York after the judgement, securing non-enforcement of the judgement by arguing that it had been procured by illegal means, namely fraud and bribery. Donziger was later disbarred.
The district court also granted Chevron discovery into Donziger’s holdings and ordered him to surrender all of his electronic devices for forensic imaging. When Donziger refused to comply fully, the court held him in contempt and referred it to the U.S. attorney’s office for prosecution. That office would later “respectfully decline” and so Judge Lewis Kaplan appointed three private attorneys as special prosecutors.
In a similar case in which a special prosecutor was appointed in a contempt case after the DOJ declined to prosecute, Judge Charles Kornmann promptly recused himself after making the appointment and so did the rest of the judges in the South Dakota District Court. The appointment of a new judge went to the Chief Judge of the Eighth Circuit Court of Appeals, who selected Judge Brian Buescher of the District Court of Nebraska to try the contempt. Buescher, however, would go on to dismiss the case.
In the Donziger case, the Southern District of New York, where Kaplan is a judge, did not recuse itself. The case was tried by Judge Loretta Preska of the same court.
Writing in the Volokh Conspiracy, law professor Josh Blackman argued that “that recusal at least eliminated an inherent conflict of interest.”
“‘[E]very court and every party” has acknowledged that the court-appointed prosecutors in this case did not exercise judicial power,” wrote Gorsuch. “The court-appointed prosecutors here exercised ‘executive power’ and were accountable through the Executive Branch’s chain of command running ultimately to the President.”
“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,” Gorsuch continued.
The district court favored the legal brief of the court-appointed prosecutors. The situation led Gorsuch to ask: “Exactly what law gives federal district courts the extraordinary power to appoint inferior executive officers to serve as prosecutors in proceedings before them?”
To Gorsuch and Kavanaugh, Rule 42 of Federal Criminal Procedure, cited by the Second Circuit, was not enough to provide sufficient cover. After all, it was enacted by the Supreme Court, not directly by Congress.
“The notion that the Constitution allows one branch to install non officer employees in another branch would come as a surprise to many,” Gorsuch wrote in reference to the court-appointed prosecutors, illustrating the separation-of-powers issue at the center of this case.
“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?” he continued.
“Our Constitution does not tolerate what happened here,” Gorsuch concluded.
No other justice except Kavanaugh joined the dissent. Four votes are required for the Court to grant certiorari.
In Blackman’s view, “Justices Sotomayor and Jackson could be expected to go along with a grant on a matter of such concern to criminal justice…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,” Blackman added.