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Maeve O’Brien²2. * Copyright © 2024 by Maeve O’Brien. J.D., 2024, New York University School of Law; B.A., 2020, The University of Michigan. Thank you to Professors Barry Adler and Paul Barrett for teaching the class that introduced me to the Donziger case, and to Professor Adler specifically for supervising my work on this essay. Thank you as well to the Online Department of the New York University Law Review for their thoughtful edits to this piece, particularly (in alphabetical order by last name), Gordon Ahl, Elaine Miao, Lydia Schiller, Julius Sim, and Shawn Young.Show More*

“[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them . . . . It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The Federalist No. 78 (Alexander Hamilton).

Last term, the Supreme Court denied a petition for writ of certiorari, filed by now famed environmental lawyer Steven Donziger, that presented the question of whether Federal Rule of Criminal Procedure 42(a)(2) violated the Appointments Clause of the U.S. Constitution. The rule allows federal judges to appoint private attorneys to prosecute criminal contempt charges should the government decline to do so and was the mechanism by which Donziger himself was prosecuted. Justice Gorsuch, joined by Justice Kavanaugh, dissented from the denial, arguing that the appointment of the special prosecutors ran afoul of the text of the Appointments Clause and blurred the line between the judicial and executive powers. The denial of the petition is an interesting departure from the Court’s recent Appointments Clause jurisprudence, which has been sensitive to separation of powers concerns, and provides a data point on where the Court is unwilling to draw a rigid line between the functions of the three branches.

Introduction

No shortage of ink has been spilled about the (literal) trials and tribulations of Steven Donziger. He rose to prominence after winning an over $9 billion victory in Ecuador for the Cofán people, an indigenous group living in the Amazon, against Chevron.³3. Isabella Grullón Paz, Lawyer Who Won $9.5 Billion Judgment Against Chevron Reports to Prison, N.Y. Times (Oct. 27, 2021), https://www.nytimes.com/2021/10/27/business/energy-environment/steven-donziger-chevron.html [https://perma.cc/AK24-U9W5].Show More Chevron had drilled for oil in the region and polluted it, allegedly, and tragically, giving many Cofán people cancer and other diseases.⁴4. Paul M. Barrett, Law of the Jungle 215-218 (2014) (describing the impact of oil drilling on the Cofán people).Show More However, an American judge found that Donziger’s victory was won through bribery and fraud—that he had taken advantage of opportunities for corruption in the Ecuadorian legal system.⁵5. See Chevron Corp. v. Donziger (Chevron I), 974 F. Supp. 2d 362 (S.D.N.Y. 2014), aff’d, 833 F.3d 74 (2d Cir. 2016). Show More The judge ruled that the Ecuadorian judgment could not be enforced in the United States;⁶6. See id. at 642.Show More after decades of litigation, no money changed hands from Chevron to the Cofán people. The ensuing legal battle in the United States culminated in Donziger having to spend months in federal prison and years in house arrest,⁷7. Paz, supra note 1.Show More garnering significant media attention and public outcry.⁸8. See, e.g., Erin Brockovich, This Lawyer Should Be World-Famous for His Battle with Chevron – but He’s in Jail, Guardian (Feb. 8, 2022, 11:54 AM), https://www.theguardian.com/commentisfree/2022/feb/08/chevron-amazon-ecuador-steven-donziger-erin-brockovich [https://perma.cc/3K8K-YXNJ]; Sharon Lerner, How the Environmental Lawyer Who Won a Massive Judgment Against Chevron Lost Everything, Intercept (Jan. 29, 2020), https://theintercept.com/2020/01/29/chevron-ecuador-lawsuit-steven-donziger [https://perma.cc/W9F6-386W]; Support Steven, Free Donziger, https://www.freedonziger.com [https://perma.cc/B3QD-H2NB] (last visited Dec. 27, 2023). Show More

There are many interesting things to say about every chapter of Donziger and Chevron’s decades-long fight. Indeed, the story has inspired a documentary,⁹9. Crude (Joe Berlinger Sept. 9, 2009).Show More a book,¹⁰10. Barrett, supra note 2.Show More and hundreds of news articles.¹¹11. See, e.g., Kevin E G Perry, Crusading Lawyer Steven Donziger on His 993 Days of House Arrest Amid Battle with Oil Companies, Independent (Jan. 8, 2024), https://www.independent.co.uk/climate-change/news/steven-donziger-interview-texaco-oil-b2446695.html [https://perma.cc/S37Y-3W8L]; Paz, supra note 1; Brokovich, supra note 6; Lerner, supra note 6.Show More The focus of this Case Comment, however, is on the end of the story, at least as it stands now: Donziger’s constitutional challenge to his criminal contempt prosecution, and the United States Supreme Court’s recent decision not to hear the case.¹²12. See Donziger v. United States (Donziger III), 143 S. Ct. 868 (2023) (denying Donziger’s petition for a writ of certiorari).Show More

Donziger’s legal battle in the U.S. culminated in him being convicted of criminal contempt, the reason that he ultimately spent time in prison.¹³13. United States v. Donziger (Donziger I), 2021 WL 3141893, at *86 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023); see also Brockovich, supra note 6 (noting that Donziger reported to serve a six-month prison sentence for contempt).Show More He was prosecuted not by a local district attorney, but by private attorneys that were appointed to serve as special prosecutors by the judge overseeing Donziger’s civil case.¹⁴14. See Order of Appointment, United States v. Donziger, No. 11-cv-00691-LAK-RWL (S.D.N.Y. July 31, 2019).Show More The judge had authority to do this under Federal Rule of Criminal Procedure 42(a)(2) (“Rule 42”), which provides that in cases of criminal contempt, “[t]he 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.”¹⁵15. Fed. R. Crim. P. 42(a)(2). The Federal Rules of Criminal Procedure are promulgated by the United States Supreme Court, House Comm. on the Judiciary, 116th Cong., Federal Rules of Criminal Procedure iii (Comm. Print 2020), and govern all criminal proceedings across federal courts, where Donziger was prosecuted. Fed. R. Crim. P. 1(a)(1).Show More

The current rule came about after the 1987 Supreme Court case, Young v. U.S. ex rel. Vuitton et Fils S.A. There, as in Donziger’s case, the defendants were prosecuted for criminal contempt by a private attorney appointed by the district court.¹⁶16. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 791–92 (1987).Show More Relevant here, they argued that the court lacked such authority under the version of Rule 42 that existed then.¹⁷17. Id. at 793. Show More The Court held that even though the old Rule 42 did not explicitly authorize courts to appoint private attorneys, it was “long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.”¹⁸18. Id. The Court also ultimately held that the prosecutors appointed in Young were not disinterested because they represented the private beneficiaries of the court order that the defendants allegedly violated, rendering their appointment improper. Id. at 814.Show More There was a “longstanding acknowledgement” that such authority was “part of the judicial function” and “essential to ensuring that the Judiciary ha[d] a means to vindicate its own authority without complete dependence on other Branches.”¹⁹19. Id. at 795–96.Show More Without it, the Judiciary would be “at the mercy of another Branch”: the Executive.²⁰20. Id. at 796. Notably, Justice Scalia concurred in the judgment, but on the ground that prosecution of criminal contempt is part of the Article II executive power, not the Article III judicial power. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring). The judicial power “includes the power to serve as a neutral adjudicator in a criminal case,” but does not “generally include the power to prosecute crimes.” Id. at 816. To Justice Scalia, the idea of the efficaciousness of judicial judgments being at the mercy of the Executive, “[f]ar from being absurd . . . is a carefully designed and critical element of our system of Government.” Id. at 817.Show More However, the Court indicated that the ability to appoint private prosecutors should be restrained by the principle that “only [t]he least possible power adequate to the end proposed should be used in contempt cases.”²¹21. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987) (quoting United States v. Wilson, 421 U.S. 309, 319 (1975)) (internal quotation marks omitted). Show More Therefore, the court should first refer the case to the public prosecutor’s office, and it should only appoint a private prosecutor if the request is denied.²²22. Id. at 801.Show More In 2002, the language of Rule 42 was amended to reflect the holding in Young.²³23. Fed. R. Crim. P. 42(a)(2) advisory committee’s note to 2002 Amendment. Show More

It is worth pausing to note that Rule 42 is so remarkable because the prosecution of crimes is traditionally a function of the executive branch.²⁴24. See Young, 481 U.S. at 816–17 (Scalia, J., concurring) (highlighting that since the prosecution of law violators is part of the implementation of the laws, it is executive power vested by the Constitution in the President); see also Heckler v. Chaney, 470 U.S. 821, 832 (1985) (“[T]he decision of a prosecutor in the Executive Branch not to indict [is] a decision which has long been regarded as the special province of the Executive Branch . . . .”).Show More Although common law England used a model of private prosecution, the American colonies quickly recognized the importance of having criminal proceedings conducted by impartial government officials, and so they established local offices of public prosecutors.²⁵25. See Andrew Sidman, Comment, The Outmoded Concept of Private Prosecution, 25 Am. U. L. Rev. 754, 756–63 (1976).Show More At the federal level, the Judiciary Act of 1789 provided for the appointment of an attorney in each judicial district to prosecute federal crimes.²⁶26. 1 Stat. 92 (1789).Show More It also created the Office of the Attorney General, who was to prosecute cases in front of the Supreme Court and advise the President of the United States and the heads of the departments, situating the position in the Article II executive branch.²⁷27. Id.Show More The district attorneys came under the Attorney General’s supervision in 1861, and Congress officially established the Department of Justice, which houses all of these positions, as an executive department of the government in 1870.²⁸28. Jim Martin, The Creation of the Department of Justice, Libr. Cong. Blogs (Dec. 4, 2017), https://blogs.loc.gov/law/2017/12/the-creation-of-the-department-of-justice [https://perma.cc/TB2C-ZY77].Show More In the years since, it has become an accepted principle that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . .”²⁹29. United States v. Nixon, 418 U.S. 683, 693 (1974).Show More

After Donziger was tried and convicted of criminal contempt by the special prosecutors appointed pursuant to Rule 42, he appealed on the ground that Rule 42 violated the Appointments Clause to the U.S. Constitution.³⁰30. Petition for a Writ of Certiorari, Donziger v. United States, 143 S. Ct. 868 (2023) (No. 22-274).Show More The Appointments Clause provides that the President of the United States, “by and with the Advice and Consent of the Senate . . . shall appoint . . . Officers of the United States . . . 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.”³¹31. U.S. Const. art. II, § 2, cl. 2.Show More Donziger argued that his prosecution ran afoul of the Appointments Clause in two ways. First, the special prosecutors were inferior officers not supervised by a principal officer, which the Court had previously held to be required by the Clause.³²32. United States v. Donziger (Donziger II), 38 F.4th 290, 293 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). In Edmond, the Court held that under the Appointments Clause, inferior officers—those not appointed by the President with the advice and consent of the Senate—must be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond v. United States, 520 U.S. 651, 663 (1997).Show More Second, Rule 42 allows judges to appoint inferior officers without Congress “by Law” vesting appointment authority in the courts.³³33. Donziger II, 38 F.4th at 293–94.Show More Donziger lost in the Second Circuit, and filed a petition for writ of certiorari with the Supreme Court, posing two questions: Does Rule 42 authorize judicial appointments of inferior executive officers? If so, do those appointments violate the Appointments Clause?³⁴34. Petition for a Writ of Certiorari, Donziger v. United States, 143 S. Ct. 868 (2023) (No. 22-274).Show More In March of 2023, the Supreme Court denied the petition, with Justices Gorsuch and Kavanaugh dissenting.³⁵35. Donziger III, 143 S. Ct. 868 (2023). Show More

This Case Comment proceeds in three parts. Part I documents and provides context to the development of Donziger’s criminal contempt case, and how his constitutional challenges were handled in the district and appellate courts. Part II details Justice Gorsuch’s vocal dissent from the Supreme Court’s denial of the petition for the writ of certiorari. Part III evaluates the state of affairs with Rule 42 and attempts to reconcile the Supreme Court’s denial of the petition with its recent Appointments Clause jurisprudence, particularly Arthrex, as well as Relentless, an upcoming case implicating separation of powers concerns.

I. Journey to the Supreme Court

A. Pre-Criminal Contempt Litigation

The events leading up to this case date back to 1993, when Donziger first became involved in the litigation in Ecuador.³⁶36. Barrett, supra note 2, at 44–48.Show More What unfolded between then and 2014, the year of his conviction in the United States, is a story unto itself—at times so dramatic that it resembles fiction.³⁷37. For a thorough and altogether fascinating account of the events preceding Steven Donziger’s prosecution in the United States, see Barrett, supra note 2. Show More For the purposes of this Case Comment, however, I start the story in 2014, when Donziger was tried before Judge Lewis Kaplan in the Southern District of New York on charges under the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), as well as other fraud-related charges, for his conduct in Ecuador.³⁸38. Chevron I, 974 F. Supp. 2d 362 (S.D.N.Y. 2014), aff’d, 833 F.3d 74 (2d Cir. 2016).Show More In a lengthy opinion, Judge Kaplan found that Donziger had violated RICO and that his victory in Ecuadorian court had been procured through fraud and other corrupt means.³⁹39. Id. at 644.Show More He granted Chevron the equitable relief it requested: that the multibillion dollar judgment in Ecuador be unenforceable in the United States and that Donziger and his team be prohibited from benefitting financially from the fraud (the “RICO judgment”).⁴⁰40. Id. at 639–42.Show More

A negative feedback loop then ensued: Judge Kaplan ordered Donziger to comply with the RICO judgment; Donziger appealed to the Second Circuit and refused to comply; Judge Kaplan penalized him; Donziger appealed the penalties and refused to comply; and so on and so forth.⁴¹41. For context, the back-and-forth between Judge Kaplan and Donziger in the courtroom occurred against a background of, and likely amplified, Judge Kaplan’s personal animus for Donziger. See Patrick Radden Keefe, Reversal of Fortune, New Yorker (Jan. 1, 2012), https://www.newyorker.com/magazine/2012/01/09/reversal-of-fortune-patrick-radden-keefe [https://perma.cc/2JWW-HT6Y] (describing Judge Kaplan as exhibiting a “palpable dislike” of Donziger over the course of several hearings leading up to the trial). Show More Donziger originally appealed the RICO judgment to the Second Circuit, which affirmed.⁴²42. Chevron Corp. v. Donziger, 833 F.3d 74, 151 (2d Cir. 2016).Show More Judge Kaplan then ordered that, in addition to the equitable relief, Donziger pay Chevron over $800,000 in court costs (the “money judgment”), which Donziger in turn appealed and did not pay.⁴³43. See Chevron Corp. v. Donziger, 384 F. Supp. 3d 465, 471–73 (S.D.N.Y. 2019) (hereinafter Chevron II) (describing the over $800,000 money judgment as being entered following the Second Circuit’s decision and reflecting taxable court costs), aff’d in part, vacated in part, rev’d in part, 990 F.3d 191 (2d Cir. 2021). Show More To enforce the money and RICO judgments, Judge Kaplan ordered that Donziger provide a list of all of his electronic devices and digital accounts to a forensic expert and surrender them for imaging,⁴⁴44. Chevron Corp. v. Donziger, 425 F. Supp. 3d 297, 306 (S.D.N.Y. 2019).Show More an inherently invasive measure. Donziger announced that he would not comply with the order,⁴⁵45. See Chevron II, 384 F. Supp. 3d at 476 (“Donziger announced in advance that he would not comply with these provisions of the Protocol and has not done so.”).Show More citing the attorney-client privilege and his constitutional due process rights.⁴⁶46. See United States v. Donziger, No. 11-CV-691(LAK), 2021 WL 92761, at *1 (S.D.N.Y. Jan. 10, 2021) (explaining that Donziger claimed he would not comply with the protocol until his due process rights were respected); see also Letter from Edward J. Markey & Sheldon Whitehouse, U.S. Sens., to Hon. Roslynn R. Manuskopf, Dir., Admin. Off. of the U.S. Cts. (July 29, 2021) [hereinafter Markey & Whitehouse Letter] (discussing Donziger’s justifications for not complying).Show More Additionally, Judge Kaplan found that Donziger had monetized the Ecuadorian judgment and had not transferred his contingent fees or any profits from the judgment to Chevron, which was part of the equitable relief in the RICO judgment.⁴⁷47. Chevron II, 384 F. Supp. 3d at 497.Show More All of this culminated in Judge Kaplan holding Donziger in civil contempt and ordering him to pay $666,476.34 and a $2,000 fine that doubled every day he did not comply with the contempt order,⁴⁸48. Id. at 506.Show More as well as ordering him to surrender his passport.⁴⁹49. See Order to Show Cause Why Defendant Steven Donziger Should Not Be Held in Criminal Contempt, United States v. Donziger, No. 11-cv-691 (LAK), at 6 (S.D.N.Y. July 31, 2019) [hereinafter Order to Show Cause].Show More A few months later, Judge Kaplan granted Chevron’s request that Donziger pay the company $3.4 million in attorney’s fees.⁵⁰50. Michael I. Krauss, Suspended Ex-Attorney Steven Donziger Condemned to Pay Chevron $3.4 Million, Forbes (July 17, 2019, 3:12 PM), https://www.forbes.com/sites/michaelkrauss/2019/07/17/suspended-ex-attorney-steven-donziger-condemned-to-pay-chevron-3-4-million/?sh=1f6113ca32cd [https://perma.cc/78ED-YPVT]. Show More

Unsurprisingly, Donziger did not pay the millions he owed to Chevron,⁵¹51. See Donziger I, 2021 WL 3141893, at *43, *47 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023) (explaining that Donziger appealed the Money Judgment and that his bank accounts were frozen and he did not have the means to pay the fines). By this point, Donziger’s law license was suspended. Matter of Donziger, 163 A.D.3d 123, 125 (App. Div. 2018). Further, due to the RICO judgment, he could not pay using money from the Ecuadorian judgment, which he had spent virtually his entire legal career pursuing. See Barrett, supra note 2, at 45 (discussing how Donziger joined the case in Ecuador two years after graduating law school). Show More nor did he turn over his devices nor surrender his passport.⁵²52. Order to Show Cause, supra note 47, at 2, 5, 6.Show More Judge Kaplan issued an Order to Show Cause and referred the case to the U.S. Attorney’s Office for the Southern District of New York.⁵³53. Petition for a Writ of Certiorari, supra note 28, at 8.Show More The office declined to pursue criminal contempt charges against Donziger, explaining that the matter would require resources that it did not have readily available.⁵⁴54. Id.Show More Judge Kaplan proceeded to draft six counts of criminal contempt charges himself in an Order to Show Cause,⁵⁵55. Order to Show Cause, supra note 47. Show More and, pursuant to his power under Rule 42, appointed three private attorneys from the law firm Seward & Kissel to serve as prosecutors in the case.⁵⁶56. Order of Appointment, United States v. Donziger, No. 11-cv-0691(LAK) (S.D.N.Y. July 31, 2019); see also Markey & Whitehouse Letter, supra note 44 (laying out the sequence of events involved with the criminal contempt proceedings). The firm Seward & Kissel had previously represented Chevron. Id.Show More The Order mandated that Donziger appear for trial before Judge Loretta A. Preska, another judge for the Southern District of New York.⁵⁷57. Order to Show Cause, supra note 47, at 1. Judge Kaplan apparently bypassed the random assignment process and picked Judge Loretta Preska to oversee the criminal case. Compare Order to Show Cause, supra note 47, at 10 (ordering that the defendant appear before the Honorable Loretta A. Preska) with E.D.N.Y Loc. R.50.2(b) (“All cases shall be randomly assigned by the clerk or his designee in public view in one of the clerk’s offices . . . .”), https://img.nyed.uscourts.gov/files/local_rules/localrules.pdf [https://perma.cc/A3G5-MDAA].Show More This rare move of a judge invoking Rule 42 to appoint private attorneys to prosecute a case would come to form the basis of the Appointments Clause showdown in Donziger v. United States.

B. District Court Proceedings

Ahead of the criminal contempt trial, Donziger moved to disqualify the special prosecutors.⁵⁸58. Petition for a Writ of Certiorari, supra note 28, at 9.Show More Judge Preska denied the motion, as well as several other motions to dismiss.⁵⁹59. See id. Early in the criminal contempt case, Judge Preska also deemed Donziger a flight risk—in part because of his ties to Ecuador—and ordered him to house arrest and seized his passport. See United States v. Donziger, 853 F. App’x 687, 688–89 (2d Cir. 2021), as amended (Apr. 26, 2021) (reviewing the district court’s risk-of-flight analysis and discussing the conditions of Donziger’s pretrial release).Show More A little over a month ahead of trial, Donziger’s legal team sent a letter to Acting Deputy Attorney General John P. Carlin, asking the Department of Justice to review the prosecution.⁶⁰60. Petition for a Writ of Certiorari, supra note 28, at 9–10.Show More Three days ahead of the scheduled trial start date of May 10, 2021, Carlin responded via email that the Department had reviewed the request and declined to intervene in the court-initiated proceedings.⁶¹61. Id. at 10.Show More At the outset of the trial, armed with Carlin’s email about the DOJ’s absence, Donziger moved to dismiss the case on the ground that the special prosecutors were inferior executive officers not supervised by a principal officer, as is required by the Appointments Clause.⁶²62. Donziger I, 2021 WL 3141893, at *52 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). Recall that under the Appointments Clause, inferior officers—those not appointed by the President with the advice and consent of the Senate—must be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate”; see also Edmond v. United States, 520 U.S. 651, 663 (1997).Show More Judge Preska found the email from Carlin to be inadmissible hearsay, and denied the motion.⁶³63. Donziger I, 2021 WL 3141893, at *52.Show More

Then, in a development consistent with the eventfulness of the Donziger litigation, the Supreme Court decided United States v. Arthrex, a major Appointments Clause case having to do with the administrative patent judges (APJs) of the United States Patent and Trademark Office.⁶⁴64. 594 U.S. 1 (2021).Show More There, the Court held that the APJs’ appointment to the Patent Trial and Appeal Board was inconsistent with their inferior officer status because they had binding, decision-making authority that was not reviewable by a principal officer.⁶⁵65. Id. at 23.Show More Therefore, they were functionally principal officers that had not been appointed by the President with the advice and consent of the Senate, in direct contravention of the Appointments Clause.⁶⁶66. See id.Show More Emboldened by Arthrex, Donziger filed a second motion to dismiss after trial but before the verdict.⁶⁷67. Donziger I, 2021 WL 3141893, at *53.Show More The special prosecutors themselves maintained that they were not subject to executive supervision, but, under Young, were merely part of the judiciary’s inherent power to prosecute contempt cases.⁶⁸68. See Petition for a Writ of Certiorari, supra note 28, at 11.Show More On their account, Arthrex was inapplicable because it pertained to only executive, not judicial, branch appointments.⁶⁹69. Id.Show More

Judge Preska rejected Donziger’s Appointments Clause claim raised in his post-trial motion for reasons adopted and reiterated by the Second Circuit, discussed infra Part I.C.⁷⁰70. Donziger raised a host of other arguments as to why the criminal contempt charges should be dismissed—including that the special prosecutors were not sufficiently disinterested as required by Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)—which the court rejected. Donziger I, 2021 WL 3141893, at *49, aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). For brevity’s sake, I will not review Donziger’s non-Appointments Clause arguments in any depth.Show More On procedural grounds, she also found that Donziger’s Appointments Clause claim was untimely and should have been raised by the deadline for pretrial motions.⁷¹71. Donziger I, 2021 WL 3141893, at *53.Show More This procedural finding supplied the basis for the Second Circuit later applying plain error review to Donziger’s challenge on appeal.⁷²72. See infra note 84 and accompanying text. Show More

Donziger was ultimately convicted of all six counts of criminal contempt and sentenced to six months in federal prison, the maximum for a criminal contempt case not required to be heard by a jury.⁷³73. Donziger I, 2021 WL 3141893, at *86 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023); see also Paz, supra note 1. He was released early under a COVID-19 waiver and served the rest of his sentence at home. Sebastien Malo, Chevron Foe Donziger Released from Prison Under COVID Waiver, Reuters (Dec. 10, 2021, 11:29 AM), https://www.reuters.com/legal/litigation/chevron-foe-donziger-released-prison-under-covid-waiver-2021-12-10 [https://perma.cc/KJZ3-PT8Y]. He was released on April 25, 2022. Steven Donziger (@SDonziger), Twitter (Feb. 4, 2022, 3:01 PM), https://twitter.com/SDonziger/status/1489690528367226883 [https://perma.cc/F7JB-R4ZG].Show More He moved for a new trial on the ground that, since the district court had found the special prosecutors to be inferior executive officers, Rule 42 violated the Appointments Clause because Congress had not “by Law” vested appointment authority in the judiciary.⁷⁴74. Petition for a Writ of Certiorari, supra note 28, at 12.Show More Judge Preska denied the motion, and Donziger appealed to the Second Circuit.⁷⁵75. Donziger II, 38 F.4th 290, 295 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023).Show More

C. Second Circuit Proceedings

Donziger’s argument on appeal was a two-fold constitutional challenge to Rule 42 under the Appointments Clause, a combination of the pre- and post-trial arguments he had raised in the district court. First, he argued that the special prosecutors were inferior officers who were not supervised by a principal officer.⁷⁶76. Id. at 293.Show More Second, he argued that Rule 42 does not satisfy the Appointments Clause requirement that Congress must vest the appointment of inferior officers in the courts “by Law” if it is going to do so.⁷⁷77. Id. at 293–94.Show More

Writing for the majority, Judge Michael H. Park first addressed the threshold question of whether the special prosecutors were officers of the United States such that they fell in the ambit of the Appointments Clause. If not, there would be no constitutional issue. To qualify as an officer, an individual must exercise “significant authority” pursuant to federal law and “occupy a continuing position established by law.”⁷⁸78. Id. at 296 (citing Lucia v. S.E.C., 138 S. Ct. 2044, 2051 (2018)).Show More Judge Park reasoned that the role of a federal prosecutor—representing the United States in criminal proceedings—was surely significant authority.⁷⁹79. Id. at 296.Show More Further, the position, though not permanent, was continuing: It extended beyond any one individual, and may (and did in this case) last for years.⁸⁰80. Id. at 299.Show More He concluded that the special prosecutors were indeed inferior officers of the executive branch, subject to the Appointments Clause requirements.⁸¹81. Donziger II, 38 F.4th at 299; cf. Morrison v. Olson, 487 U.S. 654 (1988) (finding an independent counsel to be an inferior officer).Show More

Next, Judge Park turned to, and rejected, Donziger’s first Appointments Clause argument on the same ground as the district court. Recall that under the Appointments Clause, inferior officers’ work must be supervised at some level by a principal officer.⁸²82. Edmond v. United States, 520 U.S. 651, 663 (1997).Show More He found this standard to be satisfied by the fact that the Attorney General possessed the broad statutory authority to supervise all litigation involving the United States, which included the authority to supervise, and, if necessary, remove the special prosecutors.⁸³83. Donziger II, 38 F.4th at 300; see also 28 U.S.C. §§ 516–19 (describing the Attorney General’s authorities).Show More Whether they were in fact supervised (they undeniably weren’t) was “beside the point.”⁸⁴84. Donziger II, 38 F.4th at 301. Donziger’s argument was premised on both the email from the Department of Justice declining to intervene in the prosecution, as well as the fact that the Department filed a separate amicus brief to the Second Circuit rather than directing the special prosecutors to take its position. Id. The court found this evidence insufficient because the Department could have directed the special prosecutors if it wanted to. Id.Show More Judge Park considered this finding in line with Young, which, per its interpretation, only pertains to the judicial power to initiate a prosecution for criminal contempt should the executive branch decline to do so.⁸⁵85. Id. at 301–02 (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795, 800–01 (1987)).Show More Under his reading of Young, after appointing the prosecutors, the power over the criminal contempt prosecution changes hands from the judicial to the executive branch.

Next, Judge Park turned to, and again rejected, Donziger’s second Appointments Clause argument, applying plain error review⁸⁶86. Donziger raised the specific challenge to Rule 42 after the district court opinion was issued, so the court considered it unpreserved and accordingly applied plain error view. Id. at 302–03.Show More and finding that that the judicial appointment of inferior executive officers, authorized under Rule 42, but not by statute, did not clearly violate the Appointments Clause. First, he considered it unclear whether the Appointments Clause language that Congress must “by Law” vest appointment authority in courts actually required bicameral approval and presentment, or whether Rule 42 sufficed because it was passed pursuant to the Rules Enabling Act.⁸⁷87. Donziger II, 38 F.4th at 303.Show More The Act gives the Supreme Court the power to prescribe rules of procedure for federal courts, such as Rule 42.⁸⁸88. 28 U.S.C. § 2072.Show More It must notify Congress, which can modify or reject the rules, but otherwise they automatically go into effect without congressional action.⁸⁹89. Id. § 2074. Show More

Second, he found that any error by the district court would not be clear in light of Young.⁹⁰90. Donziger II, 38 F.4th at 303. Show More Judge Park found that Young stands for the proposition that courts possess inherent authority to initiate criminal contempt proceedings by appointing private attorneys to prosecute the charges.⁹¹91. Id. (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987)).Show More He conceded that although Young may be “in some tension with the [Supreme] Court’s more recent Appointments Clause and separation-of-powers jurisprudence,” the district court did not plainly err by following a directly applicable Supreme Court case.⁹²92. Id.Show More In other words, if the Court wanted to overturn Young, that was its task to take up.

Judge Park’s majority was answered by an impassioned dissent from Judge Steven J. Menashi.⁹³93. See id. at 306 (Menashi, J., dissenting).Show More Judge Menashi’s argument was as follows: In the American constitutional framework, the power to prosecute a case lies exclusively within the executive branch.⁹⁴94. Id. (quoting United States v. Nixon, 418 U.S. 683, 693 (1974)).Show More By this point in the litigation, everyone involved agreed that the special prosecutors were inferior officers exercising an executive power—their appointment, therefore, needed to comply with the Appointments Clause.⁹⁵95. Id.Show More But, according to Judge Menashi, their appointment didn’t comply with the Clause because they were appointed by a court pursuant to Rule 42, which was not Congress “by Law” vesting appointment authority in the courts.⁹⁶96. Donziger II, 38 F.4th at 310–11 (Menashi, J., dissenting). Judge Menashi also reasoned that the court should not apply plain error review because Donziger had sufficiently challenged the constitutionality of the special prosecutors to preserve the specific Rule 42 argument. See id. at 307–09. All along, Donziger had maintained that the prosecutors were unsupervised and therefore acting as principal and not inferior officers, so there was no need to focus on the language in Rule 42 about appointing inferior officers. Id. Once the district court affirmatively found them to be inferior officers, he raised it immediately. Id. Even under a plain error standard, Judge Menashi would find that Donziger prevails. See id. at 309–10. Show More Therefore, the appointment of the special prosecutors and everything that followed—Donziger’s prosecution, conviction, and sentencing—were unconstitutional and void.⁹⁷97. Id. at 307.Show More

Judge Menashi explained that the logic of Young no longer made sense now that the court had established special prosecutors to be inferior executive officers and cabined Young’s discussion to the judiciary’s authority over only the initiation of contempt proceedings.⁹⁸98. Id. at 311.Show More Recall that the justification underlying Young was the inherent authority of the judiciary to vindicate its own authority when dealing with disobedient litigants without depending on other branches.⁹⁹99. Donziger II, 38 F.4th at 311–12 (Menashi, J., dissenting) (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796 (1987)).Show More Judge Menashi’s opinion begged the question: How is that authority actually furthered by authorizing a court to appoint a prosecutor who could be immediately fired by the same executive branch that had just declined to prosecute the case?¹⁰⁰100. See id. at 307 (“[A]ll [Young] did was authorize a district court to appoint a prosecutor who could be immediately fired by the executive branch. That is not the ‘power of self-protection’ the Young Court had in mind.” (internal citations omitted)).Show More In Judge Menashi’s view, this was not what the Young court had in mind.

Judge Menashi further explained that Rule 42 is promulgated pursuant to the Rules Enabling Act, but is not itself a law enacted by Congress, as required by the Appointments Clause.¹⁰¹101. Id. at 310–11.Show More Even though the Act requires that the rule be submitted to Congress before it takes effect, it doesn’t have to, and usually doesn’t, do anything after being notified.¹⁰²102. Id. at 311.Show More

Judge Park’s recognition of Young’s tenuousness in light of the Supreme Court’s subsequent jurisprudence, and Judge Menashi’s laying plain of its dubious logic once establishing that court-appointed prosecutors are inferior executive officers, teed the case up perfectly for Supreme Court review.

II. The Supreme Court’s Denial of the Petition for the Writ of Certiorari

Three months after the Second Circuit’s decision in United States v. Donziger, Donziger filed a petition for a writ of certiorari to the Supreme Court of the United States.¹⁰³103. Petition for a Writ of Certiorari, supra note 28.Show More The petition posed two questions: Does Rule 42 authorize judicial appointments of inferior executive officers? If so, do those appointments violate the Appointments Clause?¹⁰⁴104. Id. at *1.Show More On March 27, 2023, the Supreme Court denied the petition.¹⁰⁵105. Donziger III, 143 S. Ct. at 868.Show More Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, wrote an ardent dissent.¹⁰⁶106. Id. (Gorsuch, J., dissenting).Show More

First, sounding in Judge Menashi’s dissent from the Second Circuit opinion, Justice Gorsuch attacked Young as a shaky constitutional foundation for the appointment of private prosecutors. Young treated court-appointed prosecutors as wielding judicial power, whereas the court-appointed prosecutors in Donziger were decidedly wielding executive power and were accountable through the executive branch’s chain of command up to the President.¹⁰⁷107. Id. at 869.Show More Young, then, wasn’t even applicable on its own terms.¹⁰⁸108. Id.Show More And, even on its own judicial power rationale, Justice Gorsuch seemed skeptical as to how Young could be squared with the principle of separation of powers: Under the Constitution, a court’s role is to serve as a neutral adjudicator in a criminal case, not to prosecute the crimes themselves.¹⁰⁹109. Id. at 868–69 (quoting Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring)).Show More

Justice Gorsuch then turned to the Second Circuit’s finding that Rule 42 satisfied the Appointments Clause requirement that “Congress . . . by Law vest[ed]” appointment authority of prosecutors in courts.¹¹⁰110. Id. at 869 (quoting U.S. Const. art. II, § 2, cl. 2).Show More He identified two challenges: First, Young itself rejected the idea that the precursor to the modern Rule 42 could serve as an independent source of appointment authority.¹¹¹111. Donziger III, 143 S. Ct. at 869 (citing Young, 481 U.S. at 794).Show More Quoting Justice Scalia’s concurrence in Young, Justice Gorsuch noted that Rule 42 is after all a “‘[r]ule of court rather than an enactment of Congress,’ and therefore it cannot ‘confer Article II appointment authority on anybody.’”¹¹²112. Id. (quoting Young, 481 U.S. at 816 n.1 (internal quotation marks omitted)).Show More Second, courts have adopted Rule 42 through the Rules Enabling Act, which provides that rules promulgated pursuant to it “shall not abridge . . . or modify any substantive right.”¹¹³113. Id. (quoting 28 U.S.C. § 2072(b)).Show More Interpreting Rule 42 as authorizing courts to play the part of both accuser and decisionmaker not only transfers the power of prosecutorial discretion from the executive to the judiciary, Justice Gorsuch argued, it also violates the due process rights of the accused.¹¹⁴114. Id. at 869–70 (quoting Williams v. Pennsylvania, 579 U.S. 1, 9 (2016)).Show More

Justice Gorsuch ended with a broad appeal to the principle of separation of powers—a “basic constitutional promise essential to our liberty.”¹¹⁵115. Id. at 870. Before concluding, Justice Gorsuch also dispensed with the Department of Justice’s argument before the Second Circuit that the court-appointed prosecutors were not inferior executive officers for the purposes of the Appointments Clause but were non-officer employees. Id. Like the Second Circuit, Justice Gorsuch found this argument difficult to square with Morrison. Donziger III, 143 S. Ct. at 869 (citing Morrison v. Olson, 487 U.S. 654, 670–71 (1988)). He also balked at the idea that the Constitution allows one branch to install non-officer employees in another branch—that the President, for example, could choose his law clerk, and he the White House staff. See id.Show More Per that promise, judges lack the power to initiate a prosecution of the defendants before them, just as prosecutors lack the power to judge the cases of those they charge.¹¹⁶116. Id.Show More In light of the majority’s denial of the petition, Justice Gorsuch urged lower courts deciding whether to appoint their own prosecutors to “consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.”¹¹⁷117. Id.Show More “Our Constitution,” Justice Gorsuch announced, “does not tolerate what happened here.”¹¹⁸118. Id.Show More

III. Post-Denial: The Survival of Rule 42 and Implications for the Court’s Separation of Powers Jurisprudence

A. The Continued Constitutionality and Operation of Rule 42

In the wake of the Supreme Court’s denial of the petition for a writ of certiorari in Donziger, a few things appear true: Young remains intact, Rule 42 is still considered constitutional, and courts can continue to appoint private prosecutors in criminal contempt proceedings. Whether or not they will heed Justice Gorsuch’s warnings remains to be seen.

One could argue that Donziger and the continued constitutionality of Rule 42 will have minimal impact, if measured by the number of cases in which Rule 42 is used. By all accounts, the invocation of the rule by judges is rare, which is why Judge Kaplan’s move to appoint private attorneys to prosecute Donziger when the U.S. Attorney’s Office declined to do so was so shocking.¹¹⁹119. See Lerner, supra note 6 (calling Judge Kaplan’s invocation of Rule 42 “virtually unprecedented”); Adam Klasfeld, When Feds Demur, Judge Charges Ecuador Crusader Himself, Courthouse News Serv. (Aug. 13, 2019), https://www.courthousenews.com/when-feds-demur-judge-charges-ecuador-crusader-himself [https://perma.cc/4GPD-Z989] (reporting that only one out of five former federal prosecutors interviewed had heard of a judge appointing a private attorney to prosecute criminal contempt). Show More As of February 2022, aside from Donziger, the records of the Administrative Office of the United States Courts (AO), which assists courts with funding special prosecutors, showed only two other cases in the preceding five years where private counsel served as special prosecutors in criminal contempt cases.¹²⁰120. Those two cases are United States v. Parker and United States v. Kilgallon. Letter from Hon. Roslynn R. Mauskopf, Dir., Admin. Off. of the U.S. Cts., to Edward J. Markey & Sheldon Whitehouse, U.S. Sens. (Feb. 25, 2022). In Parker, the U.S. District Court for the Northern District of Alabama invoked Rule 42 to charge two police officers who had allegedly violated the court’s sequestration order and attempted to intimidate witnesses in an earlier trial in the case. Notice and Order Regarding Contempt Proceeding at 1–2, United States v. Parker, 696 F. App’x 443 (11th Cir. 2017) (No. 126). Based on the publicly available opinions, it is clear that one of the officers was convicted of criminal contempt, a finding that was upheld on appeal. Parker, 696 F. App’x at 444. In contrast to Donziger, though, the officer there was only ordered to pay a $2,500 fine and attend liability-management training. Id. at 446. In Kilgallon, the U.S. District Court for the District of South Dakota used Rule 42 to charge three members of the U.S. Marshals Service who had allegedly allowed the removal of three prisoners from the courthouse without permission from the court after a marshal had refused to tell the judge whether she was vaccinated against COVID-19. United States v. Kilgallon, 572 F. Supp. 3d 713, 717, 721 (D.S.D. 2021). The court ultimately dismissed the criminal contempt charges. Id. at 717. AO only keeps records related to payment, so Parker and Kilgallon may not reflect the entire universe of cases. See Letter from Hon. Roslynn R. Mauskopf to Edward J. Markey & Sheldon Whitehouse, supra. Show More

Still, Rule 42 is used, if only occasionally, including in a recent high-profile case at the appellate level, United States v. Arpaio. There, Maricopa County Sheriff Joseph M. Arpaio was convicted of criminal contempt in federal district court in Arizona and subsequently pardoned by then-President Trump.¹²¹121. United States v. Arpaio, 887 F.3d 979, 980 (9th Cir. 2018).Show More Arpaio asked the district court to vacate its verdict as well as the scheduled sentencing, which it declined to do.¹²²122. Id. at 981. Show More On appeal, the government refused to defend the district court’s order, so the Ninth Circuit resorted to appointing a special prosecutor under Rule 42 so that its merits panel would “receive the benefit of full briefing and argument.”¹²³123. Id.Show More Though it may seem like a strange fit, the facts of Arpaio show how Rule 42 is used by appellate courts in criminal contempt cases.¹²⁴124. On one hand, Arpaio demonstrates a potential use case of Rule 42: The policy preferences of the President change and the government jumps ship mid-proceeding, so to speak, leaving judges to decide cases in the dark. On the other hand, though, Justice Gorsuch might answer that that is entirely within the province of the executive branch. President Trump was elected by the American public—a mandate to carry out his policies, including with respect to pardons and criminal law enforcement, that should be implemented down the chain of command. Show More

The relative infrequency does not render the rule a nullity, nor is it obvious that frequency should be the metric for impact. No doubt when Rule 42 is invoked to prosecute someone for criminal contempt, it can be life-altering for the defendant. With the recent petition of certiorari denial, courts can feel comfortable invoking Rule 42 knowing that the Supreme Court likely won’t take up the question of its constitutionality soon, at least while the composition of the court remains as it is.

It is worth noting that Congress could solidify Rule 42’s constitutionality and quell the Appointments Clause issue by codifying it in a statute. This would obviously qualify as Congress “by Law” vesting appointment authority in the courts, as opposed to its current form of a rule promulgated by the Supreme Court pursuant to the Rules Enabling Act.¹²⁵125. 28 U.S.C. § 2072.Show More But there is no reason to think that such a proposal is top of mind—if anything, there is momentum in the opposite direction. In 2021, while Donziger was in prison, nine members of the House of Representatives wrote to Attorney General Merrick Garland, admonishing that Donziger was in prison “without Executive Branch supervision or ever seeing a jury of his peers,” and requesting that the Department of Justice “reclaim control of th[e] case, dismiss the charges, and free Mr. Donziger from his imprisonment.”¹²⁶126. Letter from Rashida Tlaib & Jesús G. Garcia, Members of Cong., to Hon. Merrick Garland, Att’y Gen., U.S. Dep’t of Just. (Nov. 29, 2021).Show More Concern about Donziger’s case wasn’t limited to the House; also in 2021, two Senators sent a letter to AO asking a series of questions about Rule 42 and raising similar concerns. While there may be congressional support for the rule should the issue come to the fore, these letters indicate that there is some level of discomfort in Congress with Rule 42 in operation. Further, while codifying Rule 42 would alleviate constitutional concerns, it would not cure the bad optics of judges appointing prosecutors in matters before them and the perception of judicial impropriety that caused the uproar in Donziger’s case.¹²⁷127. See, e.g., Jackie Kushner, Note, United States v. Donziger: How the Mere Appearance of Judicial Impropriety Harms Us All, 30 J.L. & Pol’y 533, 553–54 (2022) (arguing that Judge Kaplan’s use of Rule 42 created a perception of bias that undermined judicial legitimacy); Press Release, Int’l Ass’n of Democratic Laws., More than 200 Lawyers File Judicial Complaint Against Judge Lewis A. Kaplan over Abusive Targeting of Human Rights Advocate Steven Donziger (Sept. 1, 2020) (reporting that National Lawyers Guild and International Association of Democratic Lawyers filed a complaint with the Second Circuit alleging that Judge Kaplan was no longer acting as a judge and had “taken on the role of counsel for Chevron”); U.N. Hum. Rts. Council, Opinion No. 24/2021 concerning Steven Donziger (United States of America), at 13 (Oct. 1, 2021) (calling Kaplan’s drafting of criminal charges “a staggering display of lack of objectivity and impartiality”).Show More

B. Reconciling Donziger with Arthrex and Other Recent Appointments Clause Cases

Donziger arrived at the Supreme Court’s desk amidst a period of developments in its Appointments Clause jurisprudence. Recall that in 2021, the Court in Arthrex held that the APJs’ appointment to the Patent Trial and Appeal Board of the PTO—which was not done by the President with the advice and consent of the Senate—was inconsistent with their status as inferior officers.¹²⁸128. See supra notes 62–67 and accompanying text.Show More Writing for the majority, Justice Roberts seemed primarily concerned with the fact that the APJs possessed the power to issue binding decisions on patentability that were not reviewable by the Director of the PTO, who is a principal officer appointed by the President with advice and consent of the Senate.¹²⁹129. United States v. Arthrex, Inc., 594 U.S. 1, 14 (2021) (noting that, in contrast to inferior officer appointment schemes previously approved of by the Court, “no principal officer at any level within the Executive Branch directs and supervises the work of the APJs” when they are exercising their power to issue decisions on patentability).Show More In Justice Roberts’s eyes, such a “diffusion of power carries with it a diffusion of accountability.”¹³⁰130. Id. at 15 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497 (2010)).Show More A party to a case pending before an APJ is “left with neither an impartial decision by a panel of experts nor a transparent decision for which a politically accountable officer must take responsibility.”¹³¹131. Id. at 16.Show More Such a system “blur[s] the lines of accountability demanded by the Appointments Clause,” and ultimately leaves the public wondering who to hold to account.¹³²132. Id. This concern about democratic accountability is not limited to the Court’s Appointments Clause jurisprudence. Rather, it extends to other doctrines that implicate federalism or separation of powers questions in which the Court is troubled that the public either won’t be able to identify or will be confused about who is responsible for a governmental decision or policy—for example, the anti-commandeering doctrine. See New York v. United States, 505 U.S. 144, 182–83 (1992) (holding that a federal statute can be an unconstitutional infringement of state sovereignty even when state officials consent to the statute because the proper public officials need to be held accountable to voters); Printz v. United States, 521 U.S. 898, 919–23 (1997) (holding that it is unconstitutional for a federal law to force state participation in a federal regulatory program because a state must remain accountable to its citizens). These issues are also live with the Court’s jurisprudence on the Chevron doctrine and deference to agencies. See infra Part III.C.Show More

Interestingly, though Justice Roberts was preoccupied with the lack of democratic accountability in the context of the APJs, he did not dissent from the Court’s denial of the Donziger certiorari petition, though accountability concerns were arguably just as live. The special prosecutors in Donziger were appointed by a federal judge and then proceeded to operate for the rest of the litigation without supervision by any principal officer. Indeed, the DOJ, after declining to prosecute Donziger itself, was wholly absent from the case until the days leading up to the criminal contempt trial when Donziger requested that it intervene—a request it explicitly rejected.¹³³133. See supra notes 50–51 and accompanying text.Show More Even after Judge Preska resolved that the special prosecutors were executive branch officials who needed to be supervised by a principal officer in the executive branch in order to properly be inferior officers under the Appointments Clause (to the chagrin of the special prosecutors, who were under the impression that they were extensions of the judiciary), the DOJ refused to exercise oversight over them through the rest of the litigation, even filing briefing separate from the special prosecutors in the Second Circuit.¹³⁴134. See supra note 76 and accompanying text.Show More The complete lack of principal officer supervision over the special prosecutors appears more egregious than the level of supervision the PTO Director exercised over the APJs.

One way to reconcile Arthrex and Donziger is on the text of the relevant statutes: The PTO director did not have the statutory authority to review the decisions of the APJs in the context of inter partes review,¹³⁵135. See United States v. Arthrex, Inc., 594 U.S. 1, 8–9 (2021) (summarizing the process for inter partes review as provided in 35 U.S.C. §§ 6(c), 316(a)(11), 316(c)).Show More whereas the DOJ does have the statutory authority to supervise the special prosecutors,¹³⁶136. See Donziger II, 38 F.4th 290, 300–01 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023) (summarizing the Attorney General’s “broad authority to conduct and to supervise all litigation involving the United States” as provided in 28 U.S.C. §§ 516–19).Show More it just wholesale refused to use it. Thus, in a world of perfect information and constitutional clarity about the status of the special prosecutors, voters could hold the President to account at the polls for the DOJ’s decision not to intervene. However, the real world looks very different: If the special prosecutors themselves didn’t believe the DOJ had authority to supervise them initially, how could the public be expected to see through the chaos and know where to situate them between the executive and the judicial branches? If the Court is genuinely concerned about accountability in practice and not just accountability in theory, then, consistent with Arthrex, the Court should feel uncomfortable with the lack of executive branch oversight of the special prosecutors.

Arthrex was not a one off, but rather the latest in a series of cases where the Supreme Court came down hard on agency structures that ran afoul of the Appointments Clause. One year earlier, in Seila Law LLC v. Consumer Financial Protection Bureau, the Court held that the Consumer Financial Protection Bureau’s leadership by a single director removable only for cause was unconstitutional.¹³⁷137. Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020).Show More And, in 2018, in Lucia v. Securities and Exchange Commission, the Court held that the SEC’s administrative law judges were “officers” within the meaning of the Appointments Clause and therefore had to be appointed in accordance with it.¹³⁸138. Lucia v. S.E.C., 138 S. Ct. 2044, 2049 (2018).Show More Though less directly applicable on their facts to Donziger, these cases, together with Arthrex, represented the Court bringing executive branch officials more squarely under the President’s chain of command. This made the Court declining to touch Rule 42 in Donziger a departure not only from the Court’s last word on the matter in Arthrex, but from a broader trend of rigidly enforcing the Appointments Clause and prioritizing the President’s control over officers in the executive branch.

One other way to distinguish between Donziger and the Court’s recent Appointments Clause jurisprudence is that, in Donziger, the Court is being asked to invalidate the constitutionality of a rule that, as articulated in Young, is fundamentally aimed at enabling the judiciary to vindicate its own authority.¹³⁹139. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793, 796 (1987).Show More One could speculate that the Court is operating from a defensive posture, animated by concerns of judicial embarrassment without Rule 42 as a mechanism to prosecute uncooperative defendants. The Court’s self-consciousness of its own power, and its inclination to be the final arbiter of the bounds of such power, sounds in other doctrines, including Article III standing,¹⁴⁰140. See, e.g., Spokeo, Inc. v. Robins, 578 U.S. 330, 331–32, as revised (May 24, 2016) (holding that Congress cannot create standing merely through granting statutory rights, and thus, courts decide whether a plaintiff has suffered concrete injury to satisfy standing). Show More the political question doctrine,¹⁴¹141. See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484, 2499–502 (2019) (holding that partisan gerrymandering is a political question not justiciable by an Article III court for lack of judicially manageable standards). Show More and enforcement power under Section Five of the Fourteenth Amendment.¹⁴²142. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997) (holding that in order for Congress to legislate pursuant to its Section Five enforcement power under the Fourteenth Amendment, the injury to be prevented or remedied must be congruent and proportional to the means adopted). Show More

C. This Term: Donziger and Relentless

It is worth pausing to note another context in which the Court is actively weighing democratic accountability and separation of powers concerns: the Chevron doctrine. The doctrine, formalized in the 1984 case Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., provides that courts should defer to reasonable agency interpretations of ambiguous congressional statutes.¹⁴³143. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).Show More In recent years, conservatives on the court—chief among them, Justice Gorsuch—have taken aim at the doctrine, arguing that it displaces the role of the judiciary to interpret the law,¹⁴⁴144. See Buffington v. McDonough, 143 S. Ct. 14, 18 (2022) (Gorsuch, J., dissenting) (quoting Marbury v. Madison, 5 U.S. 137, 178 (1803)) (discussing how in the American judicial system, individuals can bring their disputes to neutral tribunals and trust that they will say “what the law is”).Show More systematically favors the government in disputes,¹⁴⁵145. See id. at 19 (“We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.”).Show More is unworkable,¹⁴⁶146. See id. at 19–20 (noting that lower courts have pursued “wildly different” approaches to deciding when a statute is sufficiently ambiguous to merit Chevron deference).Show More and creates instability from administration to administration,¹⁴⁷147. See id. at 20 (“When one administration departs and the next arrives, a broad reading of Chevron frees new officials to undo the ambitious work of their predecessors and proceed in the opposite direction with equal zeal. In the process, we encourage executive agents not to aspire to fidelity to the statutes Congress has adopted, but to do what they might while they can.”).Show More among other critiques. Lingering in the background is the idea that Chevron deference undermines democratic accountability in the long run by allowing a democratically elected Congress to pass ambiguous statutes and shirk policymaking responsibilities onto unelected agencies.¹⁴⁸148. See Petition for Writ of Certiorari at 31, Loper Bright Enters. v. Raimondo, No. 22-451 (Nov. 10, 2022) (“It is far easier to gin up ambiguity in a statute than it is to run the gauntlet of bicameralism and presentment . . . . Worse still, it is far harder for Congress to enact new legislation when one party or the other can rely on their friends in the executive branch to fix the problem without the hassle and accountability that comes with actually legislating.”); cf. Lisa Schultz Bressman, Deference and Democracy, 75 Geo. Wash. L. Rev. 761, 778–86 (arguing that in cases where the Court has not deferred to the agency’s interpretation, the agency acted inconsistently with congressional or popular will, and Presidential elections are an insufficient check on agency action).Show More This is similar to, but distinct from, the accountability concern in the Appointment Clause context about agency officials being insulated from Presidential (and therefore democratic) control.

This term, the Court’s conservative majority appears poised to overturn or seriously weaken Chevron in a pair of cases called Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. The cases challenge a rule issued by the National Marine Fisheries Service, upheld by both the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Court of Appeals for the First Circuit applying Chevron deference.¹⁴⁹149. Amy Howe, Supreme Court Likely to Discard Chevron, SCOTUSblog (Jan. 17, 2024, 6:58 PM), https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/.Show More During oral arguments, the government made an accountability argument in the opposite direction: If the choice is between agency and judicial interpretations of ambiguous statutes, at least agencies are politically accountable vis-à-vis presidential elections, whereas federal judges are unelected.¹⁵⁰150. See Transcript of Oral Argument at 124, Relentless, Inc. v. Dept. of Commerce, No. 22-1219 (2024) (arguing that in a world without Chevron deference, with potentially each lower court interpreting ambiguous statutes differently, “the force of the political accountability value” would be diminished); see also id. at 99 (Justice Ketanji Brown Jackson recognizing the people elect the presidential administration on the basis of policy, but that federal judges “are not accountable to the people and have lifetime appointments”).Show More The conservative members of the Court did not appear persuaded,¹⁵¹151. See id. at 132 (Justice Gorsuch expressing concern that Chevron almost always favored agencies over individuals “who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote, generally speaking”).Show More and seemed more concerned with Chevron allowing agencies to interpret the law where the judiciary should be doing so.¹⁵²152. See id. at 22 (Justice Gorsuch expressing concern that under Chevron, “judge[s] abdicate th[eir] responsibility and say automatically whatever the agency says wins”); see id. at 142 (Justice Kavanaugh stating that it is “the role of the judiciary historically under the Constitution to police the line between the legislature and the executive to make sure that the executive is not operating as a king, not operating outside the bounds of the authority granted to them by the legislature”).Show More The Court’s movement toward overturning Chevron provides yet another example of the modern Court enforcing a strict vision of separation of powers. This makes its comfort with Article III judges appointing Article II special prosecutors without express statutory authorization in Donziger all the more anomalous.

Conclusion

Donziger is no longer in prison or under house arrest.¹⁵³153. Molly Taft, Environmental Lawyer Targeted by Chevron Freed After More Than Two Years Under House Arrest, Amazon Watch (Apr. 26, 2022), https://amazonwatch.org/news/2022/0426-environmental-lawyer-targeted-by-chevron-freed-after-more-than-two-years-under-house-arrest [https://perma.cc/R4YF-C9GZ]. Show More The Supreme Court has declined to decide the question of whether his prosecution was constitutional, at least for now.¹⁵⁴154. See Donziger III, 143 S. Ct. 868 (2023).Show More But, regardless of the propriety of Donziger’s conduct, there are reasons to be uncomfortable with his prosecution at the hands of judicially-appointed private prosecutors and without DOJ supervision.

Rule 42 is a double offender. It feels wrong on a gut level: It resembles a bait-and-switch to defendants who would not have been charged had their case been left to the executive branch, which, according to the Supreme Court, has “exclusive authority and absolute discretion to decide whether to prosecute a case.”¹⁵⁵155. United States v. Nixon, 418 U.S. 683, 693 (1974).Show More Rule 42 is also unsupported by the text of the Constitution because it vests appointment authority in the courts without Congress doing so explicitly through legislation. If the Supreme Court had taken its own mandate in its Appointment Clause jurisprudence seriously and was truly skeptical of the blending of the separation of powers, it should have heeded the warnings of Judge Menashi and Justice Gorsuch and granted the petition for the writ of certiorari in Donziger.