United States v. Donziger ( 2022 )

21-2486
United States v. Donziger
1
2 United States Court of Appeals
3 for the Second Circuit
4
5 August Term, 2021
6
7 (Argued: November 30, 2021 Decided: June 22, 2022 )
8
9 Docket No. 21-2486
10 _____________________________________
11
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 v.
16
17 STEVEN DONZIGER,
18 Defendant-Appellant.
19 _____________________________________
20 Before:
21
22 PARK, NARDINI, and MENASHI, Circuit Judges.
23
24 Defendant-Appellant Steven Donziger was convicted of six counts of
25 criminal contempt for repeatedly defying court orders, for which he was sentenced
26 to six months’ imprisonment. He challenges the conviction, arguing that the
27 district court’s appointment of special prosecutors under Federal Rule of Criminal
28 Procedure 42(a)(2) violated the Appointments Clause of the United States
29 Constitution because (1) the special prosecutors are inferior officers who were not
30 supervised by a principal officer, and (2) Rule 42 does not satisfy the
31 Appointments Clause requirement that “Congress . . . by Law” vest the
32 appointment of inferior officers in the courts.
33 Before reaching Donziger’s Appointments Clause challenges, we must
34 determine whether special prosecutors are officers under the Appointments
35 Clause. We conclude that they are because they wield federal prosecutorial power
1 and hold a position that is not personal to a specific individual and may last for
2 years. Cf. Morrison v. Olson, 487 U.S. 654 (1988). We turn next to Donziger’s
3 Appointments Clause arguments and conclude that they lack merit. First, the
4 special prosecutors are subject to supervision by the Attorney General, who has
5 broad statutory authority to “conduct” and to “supervise” all litigation involving
6 the United States. See, e.g., 28 U.S.C. §§ 518(b), 519. This authority includes
7 supervising—and if necessary, removing—the special prosecutors. Second,
8 Donziger failed to raise his challenge to Rule 42 below, and we conclude that the
9 district court did not commit plain error by appointing the special prosecutors in
10 light of directly applicable Supreme Court precedent. See Young v. United States ex
11 rel. Vuitton et Fils S.A., 481 U.S. 787 (1987). Finally, we conclude that the district
12 court did not abuse its discretion by initiating a prosecution against Donziger for
13 repeatedly defying court orders for years. We thus affirm Donziger’s conviction.
14 Judge MENASHI dissents in a separate opinion.
15
16 STEPHEN I. VLADECK, Austin, TX (William
17 W. Taylor, III, David A. Reiser, Leila Bijan,
18 Zuckerman Spaeder LLP, Washington, DC;
19 Martin Garbus, Offit Kurman, New York,
20 NY; Ronald L. Kuby, New York, NY; Natali
21 Segovia, Water Protector Legal Collective,
22 Albuquerque, NM, on the brief), for
23 Defendant-Appellant.
24
25 RITA M. GLAVIN, Glavin PLLC, New York,
26 NY (Brian P. Maloney, Seward & Kissel LLP,
27 New York, NY, on the brief), for Appellee.
28
29 ROBERT A. PARKER (Kenneth A. Polite, Jr.,
30 Lisa H. Miller, on the brief), Criminal
31 Division, Appellate Section, United States
32 Department of Justice, Washington, DC, for
33 amicus curiae United States Department of
34 Justice in support of Appellee.
35
36
2
1 PARK, Circuit Judge:
2 Defendant-Appellant Steven Donziger was convicted of six counts of
3 criminal contempt for repeatedly defying court orders, for which he was sentenced
4 to six months’ imprisonment. He challenges the conviction, arguing that the
5 district court’s appointment of special prosecutors under Federal Rule of Criminal
6 Procedure 42(a)(2) violated the Appointments Clause of the United States
7 Constitution because (1) the special prosecutors are inferior officers who were not
8 supervised by a principal officer, and (2) Rule 42 does not satisfy the
9 Appointments Clause requirement that “Congress . . . by Law” vest the
10 appointment of inferior officers in the courts.
11 Before reaching Donziger’s Appointments Clause challenges, we must
12 determine whether special prosecutors are officers under the Appointments
13 Clause. We conclude that they are because they wield federal prosecutorial power
14 and hold a position that is not personal to a specific individual and may last for
15 years. Cf. Morrison v. Olson, 487 U.S. 654 (1988). We turn next to Donziger’s
16 Appointments Clause arguments and conclude that they lack merit. First, the
17 special prosecutors are subject to supervision by the Attorney General, who has
18 broad statutory authority to “conduct” and to “supervise” all litigation involving
3
1 the United States. See, e.g., 28 U.S.C. §§ 518(b), 519. This authority includes
2 supervising—and if necessary, removing—the special prosecutors. Second,
3 Donziger failed to raise his challenge to Rule 42 below, and we conclude that the
4 district court did not commit plain error by appointing the special prosecutors in
5 light of directly applicable Supreme Court precedent. See Young v. United States ex
6 rel. Vuitton et Fils S.A., 481 U.S. 787 (1987). Finally, we conclude that the district
7 court did not abuse its discretion by initiating a prosecution against Donziger for
8 repeatedly defying court orders for years. We thus affirm Donziger’s conviction.
9 I. BACKGROUND
10 A. Civil Contempt
11 In 2014, the United States District Court for the Southern District of New
12 York found that Donziger, a New York lawyer, had engaged in fraud and
13 racketeering activity in order to obtain an $8.646 billion judgment against Chevron
14 Corporation in Ecuador. See Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 575–
15 603 (S.D.N.Y. 2014), aff’d, 833 F.3d 74 (2d Cir. 2016). As part of the judgment, the
16 district court enjoined Donziger from enforcing the Ecuadorian judgment in the
17 United States or undertaking any acts to monetize or profit from it and ordered
18 Donziger to transfer and assign to Chevron any property that Donziger had
4
1 received or would receive that was traceable to the Ecuadorian judgment (the
2 “permanent injunctions”). In February 2018, the court issued a $813,602.71
3 judgment against Donziger.
4 A few months later, the court granted Chevron’s motion to compel
5 Donziger’s compliance with post-judgment discovery requests to identify assets
6 for enforcing the money judgment and to assess his compliance with the
7 permanent injunctions. Donziger refused to comply with the initial motion to
8 compel, a subsequent motion to compel, and finally, a Forensic Protocol Order
9 directing Donziger to surrender his electronic devices to a neutral forensic expert.
10 In May 2019, the court held Donziger in civil contempt for several violations of the
11 permanent injunctions and failure to comply with the Forensic Protocol Order. In
12 an effort to coerce compliance, the court imposed daily escalating fines on
13 Donziger and then ordered him to surrender his passports. Donziger did not pay
14 the fines or surrender his passports, and he continued to disobey the Forensic
15 Protocol Order.
16 B. Criminal Contempt
17 On July 31, 2019, after several more months of Donziger’s noncompliance
18 with court orders, the district court issued an order to show cause why he should
5
1 not be held in criminal contempt in violation of 18 U.S.C. § 401(3). Counts 1–3
2 charged Donziger with failure to comply with the Forensic Protocol Order and the
3 order to surrender his passports, and counts 4–6 charged him with violating the
4 permanent injunctions. The court referred Donziger’s prosecution to the U.S.
5 Attorney for the Southern District of New York, who “respectfully decline[d] on
6 the ground that the matter would require resources that we do not readily have
7 available.” App’x at 59 (alteration in original). The court thus appointed private
8 counsel as special prosecutors under Rule 42(a)(2).
9 On the first day of Donziger’s criminal contempt trial, he moved to dismiss,
10 arguing that the prosecution violated the Appointments Clause because the
11 special prosecutors were inferior officers who lacked supervision by the
12 Department of Justice (“DOJ”). 1 The court denied the motion in an oral ruling
13 after concluding that Donziger’s “moving papers have given the Court absolutely
14 no basis on which to conclude that the special prosecutors are not subject to any
15 control or supervision whatsoever by the Executive Branch.” App’x at 153.
Donziger included an email from Acting Deputy Attorney General John P. Carlin to
1
Donziger’s attorneys stating, “The Department has received your letters in the Donziger matter.
Having reviewed the letters, the Department declines to intervene in the federal-court initiated
contempt proceedings.” App’x at 156.
6
1 After trial but before the verdict, Donziger filed another motion to dismiss
2 again arguing that his prosecution violated the Appointments Clause because the
3 special prosecutors were unsupervised inferior officers. On July 26, 2021, the court
4 issued its findings of fact and conclusions of law and found Donziger guilty on all
5 six counts. In the decision, the court also denied Donziger’s motion to dismiss,
6 finding that the motion was untimely and that nothing in Rule 42(a) prevented the
7 Attorney General from exercising supervision and review over the special
8 prosecutor. Donziger moved for a new trial based on the same argument, and the
9 court again rejected it.
10 On October 1, 2021, Donziger was sentenced to six months’ imprisonment,
11 and judgment was entered that day. Donziger timely appealed.
12 II. DISCUSSION
13 The Appointments Clause states that the President “shall nominate, and by
14 and with the Advice and Consent of the Senate, shall appoint . . . all other Officers
15 of the United States, whose Appointments are not herein otherwise provided for,
16 and which shall be established by Law: but the Congress may by Law vest the
17 Appointment of such inferior Officers, as they think proper, in the President alone,
18 in the Courts of Law, or in the Heads of Departments.” U.S. Const. art. II, § 2, cl. 2.
7
1 “The Appointments Clause prescribes the exclusive means of appointing
2 ‘Officers,’” Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018), and it “is more than a matter
3 of ‘etiquette or protocol’; it is among the significant structural safeguards of the
4 constitutional scheme,” Edmond v. United States, 520 U.S. 651, 659 (1997) (quoting
5 Buckley v. Valeo, 424 U.S. 1, 125 (1976)).
6 Donziger argues that his prosecution was unconstitutional because the
7 special prosecutors are inferior officers who were unsupervised by a principal
8 officer and installed in violation of the Appointments Clause. Before reaching
9 these arguments, we begin with the question whether the special prosecutors are
10 Officers of the United States at all. “[W]e review questions of constitutional
11 interpretation de novo.” United States v. Hester, 589 F.3d 86, 90 (2d Cir. 2009).
12 A. Special Prosecutors Are Officers Under the Appointments Clause
13 It is not obvious from the text of the Appointments Clause who qualifies as
14 an Officer of the United States, but the Supreme Court has provided sufficient
15 guidance in its Appointments Clause jurisprudence to decide this case. To qualify
16 as an officer, an individual must (1) “exercis[e] significant authority pursuant to
17 the laws of the United States” and (2) “occupy a continuing position established
18 by law.” Lucia, 138 S. Ct. at 2051 (cleaned up). It is undisputed that special
8
1 prosecutors meet the “significant authority” requirement because they “represent
2 the United States,” Young, 481 U.S. at 804, and exercise the “sovereign power of
3 the United States,” United States v. Providence J. Co., 485 U.S. 693, 700 (1988). We
4 conclude that special prosecutors also hold a “continuing position” and are thus
5 officers under the Appointments Clause.
6 1. Temporary Positions Can Be Offices
7 The Supreme Court has long held that officers occupy a “continuing
8 position” established by law. See United States v. Germaine, 99 U.S. 508, 511–12
9 (1878); Auffmordt v. Hedden, 137 U.S. 310, 327–28 (1890). The Court’s early
10 Appointments Clause cases held that to be an officer, one’s duties had to be
11 “continuing and permanent, not occasional or temporary.” Germaine, 99 U.S. at
12 511–12; see Auffmordt, 137 U.S. at 327 (merchant appraiser not an officer because he
13 “acts only occasionally and temporarily”).
14 More recently, the Court has indicated that “continuing position” does not
15 exclusively refer to permanent positions. In Morrison, the Court said “[i]t is clear”
16 that an independent counsel is an officer even though the position terminates
17 when the counsel “has completed or substantially completed any investigations
18 or prosecutions undertaken pursuant to the [Ethics in Government] Act.” 487 U.S.
91 at 664, 671 n.12; see also Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp., 821 F.3d 19, 37–
2 38 (D.C. Cir. 2016) (holding that an arbitrator—appointed only if Amtrak and the
3 Federal Railway Administration have a certain type of dispute and whose sole
4 duty is to resolve that dispute—is an officer); In re Grand Jury Investigation, 916 F.3d
5 1047, 1052–53 (D.C. Cir. 2019) (holding that a special counsel is an inferior officer).
6 In short, an officer must occupy a position that is “continuing,” and the Court has
7 held that a temporary position, like a special prosecutor, can satisfy this
8 requirement. 2
9 Although Morrison made clear that a temporary position can be an office, it
10 did not directly address the “continuing position” requirement. Nor has the
11 Supreme Court explained how to determine what constitutes a sufficiently
12 “continuing position.” See, e.g., Freytag v. Comm’r, 501 U.S. 868, 881 (1991)
13 (acknowledging the “continuing position” requirement without elaborating);
14 Lucia, 138 S. Ct. at 2051–53 (same). We thus look to Germaine and Auffmordt, as well
15 as relevant authorities preceding those cases, for guidance on how to determine
2 See Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 534
(2018) (explaining that although the historical meaning of “officer” included the idea of “ongoing
duties,” “one did not necessarily need to be continuously employed or remunerated to qualify as
an officer. . . . A number of the individuals receiving fees for services performed or for each day
worked were considered officers by the First Congress.”).
10
1 whether a particular temporary position is sufficiently “continuing” to constitute
2 an office. These early cases generally discuss three factors that are helpful to
3 consider in determining whether a temporary position is an office: (1) the position
4 is not personal to a particular individual; (2) the position is not transient or fleeting;
5 and (3) the duties of the position are more than incidental. See Officers of the United
6 States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 112–13
7 (2007). We apply these factors to conclude that the special prosecutors here are
8 officers.
9 First, to qualify as an office, the position must not depend on the identity of
10 the person occupying it, and the duties should “continue, though the person be
11 changed.” 3 United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823); see
12 United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1867) (“Vacating the office of
13 his superior would not have affected the tenure of his place.”). By contrast, “[a]
14 man may certainly be employed under a contract, express or implied, to do an act,
15 or perform a service, without becoming an officer” because the duties under the
3 See James A. Heilpern, Temporary Officers, 26 Geo. Mason L. Rev. 753, 771 (2019) (“[A]t
the time of the Founding, common law had defined the term office as ‘an institution distinct from
the person holding it.’ An office was said to be continuous whenever it was ‘capable of persisting
beyond an individual’s incumbency.’” (brackets omitted) (quoting Edward S. Corwin, The
President: Office and Powers, 1787-1984, at 70 (4th ed. 1957))).
11
1 contract are owed by that individual, who cannot simply be replaced by another.
2 Maurice, 26 F. Cas. at 1214. Here, the special prosecutor positions are not specific
3 to the attorneys appointed to prosecute Donziger. Indeed, the prosecution was
4 originally referred to the U.S. Attorney for the Southern District of New York, who
5 declined due to unavailability of resources. Moreover, the individuals appointed
6 as special prosecutors could be replaced without the duties of the positions
7 terminating.
8 Second, the position must not be transient or fleeting. See Auffmordt, 137
9 U.S. at 326–27 (holding that a merchant appraiser is not an officer because he had
10 no “employment which has any duration as to time”); see also In re Oaths, 20 Johns.
11 492, 493 (N.Y. 1823) (“Lexicographers generally define ‘office’ to mean ‘public
12 employment;’ and I apprehend its legal meaning to be an employment on behalf of
13 the government, in any station or public trust, not merely transient, occasional or
14 incidental.”); State v. Kennon, 7 Ohio St. 546, 556 (1857) (contrasting duties that are
15 “transient, occasional, or incidental” with those that are “durable, permanent, and
16 continuous”).4 Here, the special prosecutors were appointed in July 2019 and have
4 Although In re Oaths and Kennon were state court cases, they reflect a shared
understanding of the characteristics of an office discussed in the few federal cases that addressed
the issue. See also, e.g., In re Hathaway, 71 N.Y. 238, 243–44 (1877); Eliason v. Coleman, 86 N.C. 235,
241 (1882).
12
1 already served for nearly three years. Although the special prosecutors’ duties
2 terminate upon performance, the positions are not transient or fleeting.
3 Third, the duties of the position must be more than incidental to the regular
4 operations of government.5 See Sheboygan County v. Parker, 70 U.S. (3 Wall.) 93, 96
5 (1865) (stating that the occupant of a position was not an officer because he did not
6 exercise “continuously, and as a part of the regular and permanent administration
7 of the government, any important public powers, trusts, or duties” (quoting
8 Kennon, 7 Ohio St. at 562–63)); see also Kennon, 7 Ohio St. at 556 (describing an office
9 as a “public duty, charge, and trust, conferred by a public authority, for public
10 purposes of a very weighty and important character” and “not merely transient,
11 occasional, or incidental” (cleaned up)). Here, the special prosecutors’ duties are
12 more than incidental to regular government operations because prosecution
13 generally is a core power of government and prosecution of contempt specifically
14 “vindicate[s] the authority of the court.” Int’l Union, United Mine Workers of Am. v.
15 Bagwell, 512 U.S. 821, 828 (1994) (citation omitted).
5Although this factor is not relevant to the duration of the office, its consideration is
necessary to ensure against evasion of the Appointments Clause through the creation of
temporary positions with the same powers as officers. See 31 Op. O.L.C. at 113.
13
1 2. Special Prosecutors Are Analogous to Independent Counsel
2 In light of the foregoing, we conclude that the special prosecutor position
3 here is analogous to the independent counsel position in Morrison. First, the duties
4 of the special prosecutor and independent counsel extend beyond the person. See
5 28 U.S.C. § 593(e) (“If a vacancy in office arises by reason of the resignation, death,
6 or removal of an independent counsel, the division of the court shall appoint an
7 independent counsel to complete the work.”). Second, both positions last for an
8 indefinite period of time, possibly years, and thus neither position is transient or
9 fleeting. See id. § 596(b) (the office of independent counsel terminates when the
10 investigations and prosecutions “within the prosecutorial jurisdiction” of the
11 independent counsel “have been completed” or “substantially completed”).
12 Third, both positions exercise federal prosecutorial power. 6 See id. § 594(a)
13 (independent counsel shall have “full power and independent authority to
14 exercise all investigative and prosecutorial functions and powers of the
15 Department of Justice [and] the Attorney General”). Although the independent
16 counsel exercised greater authority than a special prosecutor, such as initiating
6 The appointment order in this case grants the special prosecutors “the same power to
investigate, gather evidence and present it to the Court as could any other government
prosecutor.” App’x at 59.
14
1 prosecutions and prosecuting a wider range of crimes, see id. §§ 593(b)(3), 594(a)(9),
2 these differences go to the degree, not the nature, of the authority.
3 By contrast, the special prosecutor is less like the civil surgeon in Germaine
4 or the merchant appraiser in Auffmordt, which addressed positions that lacked
5 “any duration as to time” and duties that were narrowly limited, specialized, or
6 insignificant. Auffmordt, 137 U.S. at 327. The civil surgeon’s sole duty was to make
7 “examination of pensioners” “when called on by the Commissioner of Pensions in
8 some special case.” Germaine, 99 U.S. at 508, 512 (citation omitted); see also id. at
9 512 (“If Congress had passed a law requiring the commissioner to appoint a man
10 to furnish each agency with fuel at a price per ton fixed by law . . . he would have
11 as much claim to be an officer of the United States as the surgeons appointed under
12 this statute.”). And the merchant appraiser’s sole duty was to “examine and
13 appraise” merchandise “upon the request of the importer for a reappraisal.”
14 Auffmordt, 137 U.S. at 312, 326; see also id. at 327 (merchant appraiser is “an expert
15 assistant . . . selected for the particular case . . . [and] for his special knowledge in
16 regard to the character and value of the particular goods in question”).
17 The fact that the special prosecutor is generally appointed for a “particular
18 case” does not negate the differences between special prosecutors, on the one
15
1 hand, and civil surgeons and merchant appraisers, on the other. 7 Id. at 327. In
2 contrast to the discrete, short-lived tasks civil surgeons and merchant appraisers
3 undertake for any given case, the special prosecutor investigates and prosecutes a
4 criminal case, which can last for years and encompass a wide array of assignments,
5 such as executing search warrants, issuing subpoenas, granting immunity,
6 entering into plea bargains, and representing the government in court both at trial
7 and on appeal. Also unlike civil surgeons and merchant appraisers, the special
8 prosecutor wields “the power to employ the full machinery of the state” to
9 vindicate the authority of the judiciary, which may include the awesome
10 responsibility of depriving an individual of his liberty. Young, 481 U.S. at 814.
11 In sum, we hold that special prosecutors are officers under the
12 Appointments Clause because they are analogous to independent counsel: The
13 duties of the position extend beyond the person; although not permanent, the
7 Although in this case the special prosecutors were charged with the prosecution of only
a single defendant, special prosecutors could be appointed to investigate and prosecute multiple
defendants for contempt arising from the same court orders. For instance, the special prosecutors
in Young prosecuted five defendants—two pled guilty, one was convicted of criminal contempt,
and two were convicted of aiding and abetting that contempt. 481 U.S. at 790 n.1, 792. Although
in Young all defendants were prosecuted under the same case, a different multi-defendant
prosecution could involve multiple cases. See Fed. R. Crim. P. 14(a) (allowing the court to sever
defendants for trial where joinder “appears to prejudice a defendant or the government”).
16
1 position is continuing and may last for years; and the purpose of the position is to
2 exercise federal prosecutorial power.
3 B. Special Prosecutors Are Subject to Supervision by the Attorney General
4 Having determined that special prosecutors are officers, we turn to
5 Donziger’s first argument that his prosecution violated the Appointments Clause
6 because the special prosecutors were inferior officers who lacked supervision by a
7 principal officer. As an initial matter, it is not clear that Donziger’s argument
8 regarding supervision of the special prosecutors was timely under Federal Rule of
9 Criminal Procedure 12(b)(3)(A). 8 But even assuming it was timely, it fails on the
10 merits.
11 The Appointments Clause differentiates between principal officers—who
12 must be appointed by the President and confirmed by the Senate—and inferior
13 officers, who may be appointed by “the President alone,” “the Courts of Law,” or
8 In its findings of fact and conclusions of law, the district court determined that Donziger
forfeited his supervision argument because he did not comply with Federal Rule of Criminal
Procedure 12(b)(3)(A), which states that a “defect in instituting the prosecution” “must be raised
by pretrial motion if the basis for the motion is then reasonably available.” Donziger’s
supervision argument was apparent as soon as the special prosecutors were appointed in July
2019, but he did not raise it before the February 27, 2020 deadline for filing pre-trial motions,
waiting instead until the first day of trial. We note, however, that the government may have itself
forfeited the timeliness argument by failing to raise it in response to Donziger’s motions to
dismiss. See Eberhart v. United States, 546 U.S. 12, 18 (2005) (“[F]ailure to object to untimely
submissions entails forfeiture of the objection.”).
17
1 “the Heads of Departments,” as Congress may provide by law. Edmond, 520 U.S.
2 at 660 (quoting U.S. Const. art. II, § 2, cl. 2). Inferior officers “are officers whose
3 work is directed and supervised at some level” by principal officers. Id. at 663.
4 The special prosecutors here are inferior officers appointed by “the Courts
5 of Law” under Rule 42, see infra Section II.C, and subject to the supervision of the
6 Attorney General of the United States, a principal officer. The statutory scheme in
7 Chapter 31 of Title 28 gives the Attorney General broad authority to conduct and
8 to supervise all litigation involving the United States. See 28 U.S.C. §§ 516, 517,
9 518, 519. This includes the authority to supervise—and if necessary, to remove—
10 inferior officers.
11 As relevant here, section 518(b) states that “[w]hen the Attorney General
12 considers it in the interests of the United States, he may personally conduct and
13 argue any case . . . in which the United States is interested, or he may direct . . . any
14 officer of the Department of Justice to do so.” This section gives the Attorney
15 General the authority to replace special prosecutors, which is “a powerful tool for
16 control of an inferior,” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477,
18
1 510 (2010) (cleaned up), and to take control over contempt prosecutions.9 See Booth
2 v. Fletcher, 101 F.2d 676, 681–82 (D.C. Cir. 1938) (explaining that Rev. Stat. § 359, a
3 predecessor to 28 U.S.C. § 518(b), “gives [the Attorney General] broad, general
4 powers intended to safeguard the interests of the United States in any case . . . .
5 The Attorney General occupies no subordinate position when he elects to enter
6 such a proceeding . . . . On the contrary, the law contemplates that—consistent
7 with the proper interests of private litigants and, so far as concerns the interests of
8 the United States—he shall have full control of the prosecution or defense of the
9 case”). Indeed, at oral argument, both the special prosecutors and the DOJ
10 acknowledged that the Attorney General could replace the special prosecutors.
11 See Oral Argument at 36:37–37:03, 47:03–49:47, 55:17–55:33.
12 In addition, section 519 states that “[e]xcept as otherwise authorized by law,
13 the Attorney General shall supervise all litigation to which the United States . . . is
14 a party, and shall direct all United States attorneys [and] assistant United States
9 This power is reinforced by the Attorney General’s authority to conduct and supervise
litigation in which the United States is a party, which necessarily encompasses the authority to
decide which inferior officer represents the United States in court and the ability to replace or
remove inferior officers reporting to him. See 28 U.S.C. § 516 (“[T]he conduct of litigation in which
the United States . . . is a party . . . is reserved to officers of the Department of Justice, under the
direction of the Attorney General.”); id. § 519 (“[T]he Attorney General . . . shall direct all United
States attorneys [and] assistant United States attorneys . . . in the discharge of their respective
duties.”); id. § 542(b) (“Each assistant United States attorney is subject to removal by the Attorney
General.”).
19
1 attorneys . . . in the discharge of their respective duties.” This section is comprised
2 of two separate grants of authority to the Attorney General: (1) to “supervise all
3 litigation to which the United States . . . is a party” and (2) to “direct all United
4 States attorneys [and] assistant United States attorneys.” Id. The first grant of
5 authority is independent of the second, and thus the Attorney General’s authority
6 to supervise “all litigation to which the United States . . . is a party” does not
7 depend on whether the attorney representing the United States is a United States
8 attorney or an assistant United States attorney—indeed, it does not depend on the
9 identity of the attorney at all. Id. This section thus gives the Attorney General the
10 authority to supervise all criminal contempt prosecutions.10 See Young, 481 U.S. at
10 The dissent asserts that Providence Journal held that “Young is incompatible with
direction of the contempt proceeding by the Attorney General.” Dissent at 15. That is incorrect.
Providence Journal instead reconciled the requirement in 28 U.S.C. § 516 and § 547 that litigation
involving the United States must be conducted by a “Government attorney” with Young’s holding
that a “private attorney” could prosecute a criminal contempt charge. Providence J. Co., 485 U.S.
at 704–05. In doing so, it relied on the “[e]xcept as otherwise authorized by law” proviso in both
sections. Id. Even assuming section 516 does not apply to judicially initiated contempt
proceedings, sections 518(b) and 519 are not implicated by Providence Journal. As Providence
Journal noted, “by way of vivid contrast” to sections 516 and 547, section 518 does not contain the
“[e]xcept as otherwise authorized by law” proviso. Id. at 705. And although section 519 does
contain the proviso, contempt proceedings fall within that proviso only to the limited extent that
the Attorney General does not initiate the contempt prosecution or choose the special prosecutor.
In all other respects, they do not conflict with or require an exception to the Attorney General’s
authority to supervise contempt prosecutions.
20
1 804 (“Private attorneys appointed to prosecute a criminal contempt action
2 represent the United States.”).
3 In light of the Attorney General’s broad statutory authority to supervise all
4 litigation involving the United States, it is clear that the special prosecutors are
5 subject to the supervision of the Attorney General. Whether they were in fact
6 supervised is beside the point. A principal officer “need not review every decision
7 of the [inferior officer]. What matters is that the [principal officer] have the
8 discretion to review decisions rendered by [the inferior officer].” United States v.
9 Arthrex, Inc., 141 S. Ct. 1970, 1988 (2021). The Constitution does not mandate a
10 minimum level of supervisory activity over the work of inferior officers; rather, it
11 requires as a matter of structural authority that inferior officers be subject to the
12 supervision and direction of principal officers.
13 We thus reject Donziger’s argument that the special prosecutors were
14 unsupervised as a matter of fact. 11 He points to (1) an email from the DOJ before
15 trial declining to intervene in the prosecution and (2) the DOJ’s filing of a separate
16 amicus brief in this appeal rather than directing the special prosecutors to take the
11 Donziger concedes that the Attorney General has statutory authority to exercise
direction over this case. Reply Br. 24.
21
1 DOJ’s position.12 Neither changes the fact that the Attorney General had statutory
2 authority to supervise the special prosecutors, bringing them under the
3 supervision of a principal officer.
4 Nor does the Attorney General’s statutory authority to supervise special
5 prosecutors abrogate the judicial power described in Young to punish contempt.
6 The only judicial powers described in Young are the court’s authority to initiate
7 prosecution and to appoint a special prosecutor if the executive declines to
8 prosecute—it does not extend the judicial power beyond that point. See, e.g.,
9 Young, 481 U.S. at 795 (“[T]he initiation of contempt proceedings to punish
10 disobedience to court orders is a part of the judicial function.” (emphasis added));
11 id. at 800–01 (“[C]ourts have long had, and must continue to have, the authority to
12 appoint private attorneys to initiate such proceedings when the need arises.”
13 (emphasis added)). Indeed, Young recognized that once the prosecution
14 commenced, the special prosecutor would make critical decisions “outside the
12 Donziger also argues that the special prosecutors denied that they were subject to
supervision in their opposition to Donziger’s post-trial motion to dismiss. As the district court
correctly noted, although the special prosecutors made a misguided legal argument, it was “in
no way whatsoever” “a dispositive admission that [the special prosecutors] were not subject to
supervision and direction prior to trial.” Sp. App’x at 259 n.12 (cleaned up). In any event, even
if the special prosecutors had denied that they were subject to supervision, that would still not
vitiate the Attorney General’s statutory authority to supervise special prosecutors.
22
1 supervision of the court,” such as who should be targets of investigation, who
2 should be granted immunity, and whether to enter into plea bargains. 13 Id. at 807.
3 The Attorney General cannot prevent a court from initiating a contempt
4 prosecution or appointing a special prosecutor—his authority to supervise special
5 prosecutors starts only after the court has exercised these powers. The fact that
13 The dissent asserts based on certain language in Young that courts must have “an
independent means to prosecute criminal contempt” that cannot be interfered with by the
executive. Dissent at 13. But Young did not expand the judicial power beyond initiation and
appointment. For example, although the Court observed that “the attributes which inhere in [the
contempt] power and are inseparable from it can neither be abrogated nor rendered practically
inoperative,” Young, 481 U.S. at 799 (citation omitted), the Court concluded in the very next
sentence that prosecutions of contempt both in and out of court “proceed at the instigation of the
court.” Id. (emphasis added). Similarly, after saying “[i]f the Judiciary were completely
dependent on the Executive Branch to redress direct affronts to its authority, it would be
powerless to protect itself if that Branch declined prosecution,” the Court explains in the
following sentence that “[t]he logic of this rationale” is that a court should appoint a special
prosecutor only if the appropriate executive agency declines to prosecute. Id. at 801. The Court
also cabined the scope of its broad statement about inter-branch dependency in an earlier portion
of the opinion: “Courts cannot be at the mercy of another Branch in deciding whether such
proceedings should be initiated. The ability to appoint a private attorney to prosecute a contempt
action satisfies the need for an independent means of self-protection.” Id. at 796 (emphases
added).
The dissent states that the judicial power described by Young is “ineffectual” and
“strange” because it is useful only “when the executive branch actually wants to prosecute the
contempt but declines to do so solely for lack of resources.” Dissent at 13. But this understates
the power blessed by the Court in Young. The ability to initiate the process and to appoint a
prosecutor gives the judiciary some ability to protect its interests. Although the executive could
terminate a contempt prosecution initiated by the judiciary, that would entail greater political
accountability than a decision not to prosecute in the first place, and the judiciary could further
respond by initiating a new prosecution and appointing another special prosecutor. See Oral
Argument at 49:30–49:50, 57:00–58:20. Although this would not necessarily ensure prosecution
of a contemnor, it would provide a level of political accountability sufficient to fulfill the rationale
of Young.
23
1 the Attorney General has the power to direct and even remove special prosecutors
2 does not negate the court’s power to appoint them, and the fact that he has
3 authority to take control of and even to terminate the contempt prosecution does
4 not negate the court’s authority to initiate one.
5 We thus reject Donziger’s first Appointments Clause argument because the
6 Attorney General has the statutory authority to supervise the special prosecutors.
7 C. Donziger’s Rule 42(a) Challenge Does Not Satisfy Plain-Error Review
8 For the first time on appeal, Donziger argues that his prosecution was
9 unconstitutional because the special prosecutors were appointed under Federal
10 Rule of Criminal Procedure 42(a), which did not satisfy the Appointments Clause
11 requirement that “Congress . . . by Law vest the Appointment.” U.S. Const. art. II,
12 § 2, cl. 2. We review for plain error because Donziger did not make this argument
13 below.14 See United States v. Eldridge, 2 F.4th 27, 36 (2d Cir. 2021); see also Yakus v.
14 The dissent asserts that Donziger’s related, but distinct, Appointments Clause argument
that the special prosecutors were unsupervised inferior officers in his motions to dismiss
sufficiently raised the Rule 42(a) issue for review. See Dissent at 4–5. But that is a stretch.
Donziger never argued below that Rule 42(a) is unconstitutional. In fact, he conceded this failure
at oral argument. See Oral Argument at 19:37–43 (“We did not raise [the Rule 42 argument]
specifically.”); see also In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132–33 (2d Cir. 2008)
(concluding that an argument made below merely “resembling” the one presented on appeal was
not sufficient to preserve the issue). The dissent also suggests that Donziger had no reason to
raise the Rule 42(a) argument below until the district court rejected his supervision argument. See
Dissent at 5–6. We disagree. First, Donziger never argued that the special prosecutors were
24
1 United States, 321 U.S. 414, 444 (1944) (“No procedural principle is more familiar
2 . . . than that a constitutional right may be forfeited in criminal as well as civil cases
3 by the failure to make timely assertion of the right before a tribunal having
4 jurisdiction to determine it.”); Freytag, 501 U.S. at 893–94 (Scalia, J., concurring)
5 (“Appointments Clause claims, and other structural constitutional claims, have no
6 special entitlement to review. A party forfeits the right to advance on appeal a
7 nonjurisdictional claim, structural or otherwise, that he fails to raise at trial.”).
8 “[T]he defendant has the burden of establishing each of the four
9 requirements for plain-error relief,” one of which is that the “error must be plain.”
10 Greer v. United States, 141 S. Ct. 2090, 2096–97 (2021). An error is plain if it is “clear”
11 or “obvious,” United States v. Olano, 507 U.S. 725, 734 (1993) (citation omitted), or
12 “if the ruling was contrary to law that was clearly established by the time of the
13 appeal,” United States v. Polouizzi, 564 F.3d 142, 156 (2d Cir. 2009) (citation omitted).
14 There is no plain error here. First, it is not clear that the phrase “Congress
15 . . . by Law” requires bicameral approval and presentment, and that it does not
principal officers who should have been appointed by the President and confirmed by the
Senate—his position throughout the case has been that they are inferior officers. We thus see no
reason why he couldn’t have argued below that the special prosecutors were inferior officers who
were not only inadequately supervised, but also improperly appointed under Rule 42(a). Second,
after the district court rejected Donziger’s supervision argument, he could have—but didn’t—
raise this Rule 42(a) argument in his motion for a new trial.
25
1 encompass Rule 42, which was enacted under the Rules Enabling Act, which gives
2 Congress an opportunity to modify or reject rules before their enactment. See 28
3 U.S.C. § 2074.
4 Second, even if we might ultimately conclude that the appointment of a
5 special prosecutor under Rule 42 violates the Appointments Clause, any error by
6 the district court would not be “clear” or “obvious” in light of Supreme Court
7 precedent. Young held that “courts possess inherent authority to initiate contempt
8 proceedings for disobedience to their orders, authority which necessarily
9 encompasses the ability to appoint a private attorney to prosecute the contempt.”
10 481 U.S. at 793. Even if we were to agree that Young is in some tension with the
11 Court’s more recent Appointments Clause and separation-of-powers
12 jurisprudence, the district court did not plainly err by following directly applicable
13 Supreme Court precedent. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“[I]f a
14 precedent of this Court has direct application in a case, yet appears to rest on
15 reasons rejected in some other line of decisions, the Court of Appeals should
16 follow the case which directly controls, leaving to this Court the prerogative of
17 overruling its own decisions.” (citation omitted)).
26
1 The dissent contends that the district court plainly erred because
2 prosecution is solely an executive function, and “the ‘executive Power’—all of it—
3 is ‘vested in a President.’” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191 (2020)
4 (citation omitted). But the dissent never seriously argues, nor could it, that the
5 judicial appointment of a prosecutor would violate the separation of powers. See
6 U.S. Const. art. II, § 2, cl. 2 (“Congress may by Law vest the Appointment of such
7 inferior Officers . . . in the Courts of Law.”); see also 28 U.S.C. § 546(d) (allowing
8 the district court to appoint an interim United States attorney in certain
9 circumstances). And in Donziger’s appeal, it is precisely the appointment of
10 special prosecutors that is at issue.
11 Instead, the dissent focuses almost exclusively on the initiation of the
12 prosecution by the district court. But Donziger does not argue on appeal that his
13 conviction should be overturned because the district court’s initiation of his
14 prosecution violated separation of powers. That argument would conflict not only
15 with Young, but also with well-established precedent recognizing the judiciary’s
16 ability to punish contempts. See Michaelson v. United States, 266 U.S. 42, 65 (1924)
17 (“That the power to punish for contempts is inherent in all courts, has been many
18 times decided and may be regarded as settled law.”).
27
1 The dissent would hold that Rule 42 is unconstitutional, as are all judicially-
2 initiated contempt prosecutions because they violate separation-of-powers
3 principles.15 See Dissent at 16–18. Supreme Court precedent does not support that
4 extraordinary conclusion. The dissent accuses us of not “faithfully apply[ing]
5 Young,” Dissent at 16, but what is clear from that case is that the Supreme Court
6 explicitly rejected the dissent’s position. See Young, 481 U.S. at 797–801 (rejecting
7 petitioners’ argument that out-of-court contempt prosecutions may be initiated
8 only by the executive branch).
9 The district court reasonably relied on Young, and we conclude that it was
10 not plain error to appoint the special prosecutors under Rule 42(a).
15 The dissent distinguishes between in-court contempts that interfere with the judicial
process and can be punished summarily because they occur in the presence of the judge and out-
of-court contempts involving violations of judicial orders and judgments that require adversarial
proceedings. See Dissent at 17 n.10. Young concluded that “while the prosecution of in-court and
out-of-court contempts must proceed in a different manner, they both proceed at the instigation
of the court” and both are inherently part of the judicial power. Young, 481 U.S. at 799; see also id.at 797–801; Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1873) (“The power to punish for
contempts is inherent in all courts; its existence is essential to the preservation of order in judicial
proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and
consequently to the due administration of justice.” (emphasis added)); Bessette v. W.B. Conkey Co.,
194 U.S. 324, 333 (1904) (judicial power to punish contempt “has been uniformly held to be
necessary to the protection of the court from insults and oppressions while in the ordinary
exercise of its duties, and to enable it to enforce its judgments and orders necessary to the due
administration of law and the protection of the rights of suitors” (emphasis added)).
28
1 D. The District Court Did Not Abuse Its Discretion by Initiating the Prosecution
2 Finally, Donziger argues that by initiating a criminal contempt prosecution
3 against him, the district court failed to adhere to the “principle that only the least
4 possible power adequate to the end proposed should be used in contempt cases,”
5 and he appeals to our “supervisory authority” to overturn the conviction on that
6 basis. 16 Young, 481 U.S. at 801, 808–09 (cleaned up). We review the district court’s
7 decision to initiate contempt proceedings under a heightened abuse-of-discretion
8 standard. See Doral Produce Corp. v. Paul Steinberg Assoc., Inc., 347 F.3d 36, 38 (2d
9 Cir. 2003) (holding that a judge’s decision to issue summary criminal contempt
10 orders are “reviewed on appeal for abuse of discretion, but because of the
11 formidable and potentially harmful nature of the contempt power, this review is
12 more rigorous than in other contexts” (cleaned up)); see also 18 U.S.C. § 401 (“A
13 court of the United States shall have power to punish by fine or imprisonment, or
14 both, at its discretion, such contempt of its authority.” (emphasis added)).
15 First, Donziger does not deny that he repeatedly refused to obey court
16 orders over a period of years. The district court’s findings of fact and conclusions
16 We note the Supreme Court’s recent observation that “[s]ome jurists have questioned
[the Supreme Court’s] supervisory authority over lower courts.” United States v. Tsarnaev, 142 S.
Ct. 1024, 1035 n.1 (2022); see also id. at 1041 (Barrett, J., concurring) (expressing “skepticism that
the courts of appeals possess such supervisory power”).
29
1 of law describe Donziger’s behavior as an “extensive and continuous laundry list
2 of past violations of [the district court’s] orders” and as “years of noncompliance.”
3 Sp. App’x at 243–44 (emphasis omitted).
4 Second, the district court did not abuse its discretion by punishing Donziger
5 for his past disobedience of court orders, even if it had since been cured. Criminal
6 contempt punishes “retrospectively for a completed act of disobedience, such that
7 the contemnor cannot avoid or abbreviate the confinement through later
8 compliance.” Bagwell, 512 U.S. at 828–29 (cleaned up). Unlike civil contempt,
9 which is aimed at “compel[ling] future compliance with a court order” and is
10 “remedial[] and for the benefit of the complainant,” criminal contempt is
11 “punitive” and meant to “vindicate the authority of the court.” Id. at 827–28. Here,
12 “the end proposed” was not compliance with court orders but punishment for past
13 disobedience and vindication of the court’s authority. It is therefore beside the
14 point that Donziger eventually complied with most of the court orders underlying
15 his criminal contempt conviction.
16 Third, it is not an abuse of discretion for a court to punish a contemnor who
17 disobeys court orders to obtain appellate review. See Del Carmen Montan v. Am.
18 Airlines, Inc., 490 F.3d 99, 104 (2d Cir. 2007) (“[T]he remedy of the party witness
30
1 wishing to appeal [a court’s decision to compel compliance with a subpoena or
2 deny a motion to quash a subpoena] is to refuse to answer and subject himself to
3 criminal contempt.” (citation omitted)).
4 In any event, Donziger’s assertion that he disobeyed the court’s discovery
5 orders to appeal them is dubious. When he appealed the civil contempt orders
6 and had the opportunity to challenge two of the three discovery orders that were
7 the basis for his criminal contempt conviction, he failed to do so—he challenged
8 only one contempt finding, which was not part of his criminal conviction. See
9 Chevron Corp. v. Donziger, 990 F.3d 191, 206 (2d Cir. 2021).
10 We thus conclude that the district court did not abuse its discretion by
11 initiating a contempt proceeding against Donziger.17
12 III. CONCLUSION
13 For the reasons set forth above, the district court’s judgment is AFFIRMED.
17 Donziger mentions in passing various other objections to his prosecution—namely, he
was denied his right to a grand jury and a petit jury, Judge Kaplan picked Judge Preska to preside
over the criminal case without recusing himself, and the private prosecutor had ties to Chevron.
These arguments were waived because they were “not sufficiently argued in the briefs,” and we
decline to address them. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
31
21-2486
United States v. Donziger
MENASHI, Circuit Judge, dissenting:
When the U.S. District Court for the Southern District of New
York requested that the U.S. Attorney prosecute Steven Donziger for
contempt, the U.S. Attorney “respectfully decline[d].” App’x 59. In
response to that exercise of prosecutorial discretion, the district court
appointed three private attorneys “to prosecute Steven Donziger on
the charges of criminal contempt.” Id. These judicially appointed
prosecutors eventually secured a conviction against Donziger and a
sentence of six months’ imprisonment.
This is not how defendants are prosecuted in a system of
separated powers. In our constitutional framework, “the Executive
Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693
(1974). In this case, however, the district court made that decision by
appointing its own prosecutors. Moreover, any officer exercising the
executive power—as all parties now acknowledge the special
prosecutors to be—must be appointed consistent with the
Appointments Clause. That clause requires appointment by the
President and confirmation by the Senate unless “Congress … by
Law” vests the appointment of certain inferior officers in the courts,
the heads of the departments, or the President alone. U.S. CONST. art.
II, § 2, cl. 2. In this case, the district court appointed the special
prosecutors, but Congress never authorized it to do so.
Thirty-five years ago, the Supreme Court suggested that
Article III created an exception to normal separation-of-powers
principles when a district court appoints private lawyers as special
prosecutors for criminal contempt proceedings. In Young v. United
States ex rel. Vuitton et Fils S.A., the Court said that the power to initiate
a prosecution followed from the judiciary’s “inherent power of self-
protection,” so that a court would not be “completely dependent on
the Executive Branch to redress direct affronts to its authority.” 481
U.S. 787, 801 (1987). For that reason, Young said, the power to initiate
“contempt proceedings to punish disobedience to court orders” was
“a part of the judicial function.” Id. at 795.
No one involved in this case has treated the prosecution of
Donziger as an exercise of inherent judicial authority. Every court and
every party in these proceedings agrees that the special prosecutors
exercised executive power. The court acknowledges that special
prosecutors are officers of the United States and “exercise the
sovereign power of the United States.” Ante at 8-9 (internal quotation
marks omitted). The special prosecutors themselves admit that they
exercise a “form of executive power.” 1 And Donziger, the special
prosecutors, and the court all conclude that the prosecution could
have been ended by the Attorney General. See ante at 23-24; Reply Br.
24; Appellee’s Br. 38.
Despite this agreement that, as the court understatedly puts it,
“Young is in some tension with the Court’s more recent Appointments
Clause and separation-of-powers jurisprudence,” ante at 26, the court
attempts to reconcile that jurisprudence with Young. According to the
court, Young held that the judiciary has the inherent power only to
initiate a prosecution and left to the executive branch the power to
terminate that prosecution at any time. Id. at 22-24. In other words,
although Young purported to provide the judiciary a “means to
vindicate its own authority without complete dependence on other
1 Oral Argument Audio Recording at 38:00.
2
Branches,” all it did was authorize a district court to appoint a
prosecutor who could be immediately fired by the executive branch.
Young, 481 U.S. at 796. That is not the “power of self-protection” the
Young Court had in mind. Id. at 801.
I agree with the part of the court’s opinion holding that even a
judicially appointed special prosecutor is an executive officer
performing an executive function. For that reason, I would
acknowledge that the appointment of such a prosecutor cannot be
justified by inherent judicial authority but must be consistent with the
Appointments Clause. Because the appointments in this case were not
made in compliance with the Appointments Clause, I would hold that
the appointments of the special prosecutors—and the subsequent
prosecution, conviction, and sentencing of Donziger—are void. I
would reverse the judgment of the district court and vacate
Donziger’s conviction.
Prosecution is an aspect of the executive power, and the
executive power, “all of it,” belongs to the executive branch. Seila Law
LLC v. CFPB, 140 S. Ct. 2183, 2191 (2020). The district court exercised
that power in this case, and therefore its judgment cannot stand.
Accordingly, I dissent.
I
The court relies on the plain error doctrine to avoid squarely
addressing whether the prosecution of Donziger was
unconstitutional. According to the court, Donziger failed to argue
before the district court that the appointments of the prosecutors were
unconstitutional, and therefore plain error review applies. Thus, even
though the prosecution might have been unconstitutional, because it
3
was not plainly so, the court holds that we must affirm Donziger’s
conviction. I disagree.
A
First, plain error review does not apply because Donziger
raised his challenge to the appointments of the special prosecutors
repeatedly before the district court. In his pretrial motion to dismiss
the contempt charge, Donziger argued that “judges invoking criminal
contempt must exercise utmost restraint,” that Justice Scalia
“strenuously argued that federal judges themselves have no … power
to appoint an attorney to conduct contempt prosecutions,” and that
“[t]he circumstances of Steven Donziger’s criminal case validate …
Justice Scalia’s[] … concerns about abuse of the contempt power.”
Pretrial Motion to Dismiss at 6-7, United States v. Donziger, No. 19-CR-
561, 2021 WL 3141893 (S.D.N.Y. July 26, 2021), ECF No. 60. During the
trial, Donziger filed another motion to dismiss challenging the
appointments of the special prosecutors because the prosecutors were
“acting without any acknowledged [e]xecutive branch supervisory
authority” and yet “have not been appointed by the President with
the advice and consent of the Senate.” Motion to Dismiss at 3,
Donziger, 2021 WL 3141893, ECF No. 302. After the trial, Donziger
again sought dismissal of the case because “the appointment of Ms.
Glavin,” the lead special prosecutor, “was unconstitutional.” Motion
to Dismiss at 1, Donziger, 2021 WL 3141893, ECF No. 330. The district
court responded to Donziger’s arguments by holding that the
appointments of the special prosecutors pursuant to Federal Rule of
4
Criminal Procedure 42 was consistent with the Appointments
Clause.2
Donziger was so persistent in raising his Appointments Clause
challenge that he exasperated the district court. See, e.g., Donziger,
2021 WL 3141893, at *53 (“Undeterred, Mr. Donziger filed a second
post-trial letter motion to dismiss the contempt charges on
Appointments Clause grounds.”). Nevertheless, the court determines
that he “did not make this argument below.” Ante at 24. According to
the court, it was not enough for Donziger to preserve the issue to
contend that the appointments of the special prosecutors violated the
Appointments Clause. Instead, Donziger needed specifically to argue
that Rule 42 “did not satisfy the Appointments Clause requirement
that ‘Congress … by law vest the Appointment.’” Id. at 24 (quoting
U.S. CONST. art. II, § 2, cl. 2). But Donziger had no reason to frame his
Appointments Clause challenge in this way before the district court.
Donziger argued to the district court that the special prosecutor was
unsupervised and therefore was not acting as an inferior officer who
could assume office without appointment by the President and
confirmation by the Senate. Only after the district court rejected that
argument—and held that the special prosecutor was an inferior
officer and could properly be appointed by a district court pursuant
to Rule 42, see supra note 2—did it make sense for Donziger to present
2 See Donziger, 2021 WL 3141893, at *54 (“Unlike principal officers, inferior
officers Congress may allow to be appointed by the President alone, by the
heads of departments, or by the Judiciary. That is precisely what happened
in this case. Federal Rule of Criminal Procedure 42 (‘Rule 42’) authorized—
in fact, mandated—Judge Kaplan to appoint an attorney to prosecute the
criminal contempt charges against Mr. Donziger.”) (internal quotation
marks, alteration, and footnote omitted).
5
the argument that Rule 42 does not authorize a district court to
appoint an inferior officer under the Appointments Clause.3
The court recognizes that the district court’s holding with
respect to Rule 42 is questionable. See ante at 26 (noting that “we might
ultimately conclude that the appointment of a special prosecutor
under Rule 42 violates the Appointments Clause”). But the court
refuses to consider Donziger’s challenge to that holding on the merits
because Donziger failed to make a specific argument against that
holding before the holding was ever issued.
That does not make sense. The “well-established general rule”
is that “an appellate court will not consider an issue raised for the first
time on appeal.” Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994).
In this case, Donziger repeatedly raised the issue of the Appointments
Clause before the district court, and the district court addressed it. I
would hold that Donziger thereby preserved the issue and that we
should consider his appeal on the merits. Because “this appeal turns
on a pure question of law,” the standard of review is de novo rather
than plain error. Am. Int’l Grp. v. Bank of Am. Corp., 712 F.3d 775, 778
(2d Cir. 2013).
3 The court insists that “Donziger never argued that the special prosecutors
were principal officers who should have been appointed by the President
and confirmed by the Senate.” Ante at 24-25 n.14. But Donziger’s argument
that the special prosecutors’ appointments were unconstitutional because
they lacked “supervision by the Department of Justice” was an argument
that the special prosecutors were acting as principal officers despite not
having “been appointed by the President with the advice and consent of the
Senate.” Motion to Dismiss at 3, Donziger, 2021 WL 3141893, ECF No. 302.
6
B
Second, even if Donziger had to show plain error, I would
conclude that he satisfies that standard. We find plain error when
“(1) there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the appellant’s
substantial rights; and (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United States v.
Nouri, 711 F.3d 129, 138 (2d Cir. 2013) (internal quotation marks and
alterations omitted). I do not understand the court to argue that the
constitutional violation Donziger alleges did not affect his
“substantial rights” or seriously affect the “fairness, integrity or
public reputation of judicial proceedings.” Id. It clearly did both.
Donziger was sentenced to six months’ imprisonment following a
prosecution he claims should not have been permitted at all.
To avoid deciding whether the appointments of the special
prosecutors were unconstitutional, the court holds that any error by
the district court is not “plain.” Ante at 25-26. An error is plain if it is
“clear” or “obvious.” United States v. Olano, 507 U.S. 725, 734 (1993).
We do not determine the plainness of an error according to how
understandable it was for the district court to have erred. Plain error
is assessed “at the time of appellate consideration,” Johnson v. United
States, 520 U.S. 461, 468 (1997), and we find plain error even when the
error would not have been “clear” or “obvious” before the district
court at the time of its decision. See, e.g., United States v. Balde, 943 F.3d
73, 97 (2d Cir. 2019) (holding that the district court committed plain
error based on a Supreme Court decision published after the district
court’s judgment).
7
The court maintains that the district court’s alleged error is not
clear enough because the district court was following Young when it
held that the appointments were valid. In particular, the court refers
to the principle that if “a precedent of [the Supreme] Court has direct
application in a case, yet appears to rest on reasons rejected in some
other line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions.” Ante at 26 (quoting
Agostini v. Felton, 521 U.S. 203, 237 (1997)). The court’s application of
this principle suggests not merely that the district court did not plainly
err but that the district court did not err at all. If the court thinks that
the Agostini principle requires continued adherence to Young, it
should say so. But the court avoids saying that directly because it
would contradict what the court holds in the first part of its opinion.
No court that believes what the majority says about the
authority of the special prosecutors in this case could conclude that
Young justifies their appointments. Until this case, no court of appeals
had ever held that a special prosecutor was an executive officer who
could nevertheless be judicially appointed consistent with the
Appointments Clause. Young does not stand for that proposition. As
Justice Scalia noted, “the power to appoint inferior federal officers”
under the Appointments Clause was “irrelevant” to the Court’s
decision in Young, 481 U.S. at 815 (Scalia, J., concurring in the
judgment), which rested instead on the courts’ “inherent authority”
under Article III, id. at 793 (majority opinion). Today, the court does
not follow the “inherent authority” rationale of Young because it
recognizes that doing so would be inconsistent with the Supreme
Court’s subsequent cases. Given that everyone in this case agrees that
8
the rationale of Young is untenable, reliance on that decision to excuse
a violation of the Appointments Clause is plainly erroneous.
II
According to the court, however, it was not plainly erroneous
for the district court to appoint special prosecutors and initiate this
prosecution following the U.S. Attorney’s refusal to prosecute. Where
did the district court get that power to appoint prosecutorial officers?
Our government “is acknowledged by all to be one of enumerated
powers,” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819),
and the only enumerated powers that could justify the appointments
in this case are the appointment power under the Appointments
Clause or the “judicial Power” under Article III. See U.S. CONST. art.
II, § 2; id. art. III, § 1. Neither of these provisions authorizes the
appointments in this case.
A
The Appointments Clause provides that “Congress may by
Law vest the Appointment of such inferior Officers, as they think
proper, … in the Courts of Law.” Id. art II, § 2. The district court relied
on Rule 42 to authorize the appointments of the special prosecutors.
Donziger, 2021 WL 3141893, at *54. The Supreme Court amended Rule
42 in 2002 pursuant to its authority under the Rules Enabling Act “to
prescribe general rules of practice and procedure and rules of
evidence for cases” in the federal courts. 28 U.S.C. § 2072(a); see Bank
of N.S. v. United States, 487 U.S. 250, 255 (1988). In accordance with the
Act, the Court transmitted the amended Rule to Congress before it
became effective. 28 U.S.C. § 2074. Because Congress did not pass a
law to prevent the Rule from taking effect, the current version of Rule
42 became operative on December 1, 2002.
9
Today’s opinion suggests that Rule 42 might be sufficient under
the Appointments Clause to vest authority to appoint special
prosecutors in the courts. See ante at 25-26. It is not. The Appointments
Clause provides not only that the appointment power must be vested
“by Law”; it also tells us who must vest that power: “Congress.”
U.S. CONST. art. II, § 2.4 As Justice Scalia observed in Young, Rule 42
“could not confer Article II appointment authority, since it is a Rule
of court rather than an enactment of Congress.” Young, 481 U.S. at 816
n.1 (Scalia, J., concurring in the judgment). To be sure, by operation of
the Rules Enabling Act, Rule 42 is “as binding as any statute duly
enacted by Congress.” Bank of N.S., 487 U.S. at 255. But that does not
mean Rule 42 is a statute duly enacted by Congress. The Rules
Enabling Act provides only that a rule must be submitted to Congress
at least seven months before it takes effect. See 28 U.S.C. § 2074(a).
That notification provision—under which Congress normally does
nothing at all—cannot transform the courts’ adoption of Rule 42 into
an instance of “Congress … by Law” vesting the appointment power
in the courts.
4 The same clause refers to federal offices that “shall be established by
Law.” U.S. CONST . art. II, § 2, cl. 2. Some justices have suggested that “Law”
as used there might include sources of law other than statutes. See United
States v. Mouat, 124 U.S. 303, 308 (1888) (“[N]either by the regulations, nor
by the statutes, nor by any constitutional provision, is the present claimant
an officer of the navy.”); Free Enter. Fund v. PCAOB, 561 U.S. 477, 539 (2010)
(Breyer, J., dissenting) (arguing that the Supreme Court has defined inferior
officers as “those who can be said to hold an office that has been created
either by regulations or by statute”) (internal quotation marks and citation
omitted). But when the Constitution authorizes the vesting of the
appointment power, it specifies that “Congress may by Law” do so. U.S.
CONST . art. II, § 2, cl. 2 (emphasis added). Regardless of the scope of the
term “Law,” it is Congress that must do the vesting.
10
Given the court’s purported adherence to Young, it is odd that
the court argues the district court might have appointed the special
prosecutors pursuant to the Appointments Clause. In Young, the
Supreme Court did not rely on Rule 42 or any statute to conclude that
the appointment was authorized. According to Young, the version of
Rule 42 in effect at that time “d[id] not provide authorization for the
appointment of a private attorney.” 481 U.S. at 793. Rather, the Rule
“sp[oke] only to the procedure for providing notice of criminal
contempt.” Id. at 794. Instead of relying on Rule 42 for authorization,
the Supreme Court held that the authority to appoint a special
prosecutor was inherent in the judicial power under Article III. Id. at
793. Thus, “[t]he Court in Young made clear that Rule 42 is rooted in
an inherent judicial power that exists independently of the Rule.”
United States v. Arpaio, 906 F.3d 800, 803 (9th Cir. 2018) (W. Fletcher,
J., concurring in the denial of rehearing en banc). If the court believes
that Young justifies the district court’s decision in this case, then its
discussion of the Appointments Clause is beside the point.
B
If the judicial appointment of a special prosecutor can be
justified at all, it must be an exercise of inherent judicial authority. In
Young, the Supreme Court held that the “inherent authority to initiate
contempt proceedings for disobedience to their orders … necessarily
encompasses the ability to appoint a private attorney to prosecute the
contempt.” 481 U.S. at 793. The Court did more than simply assert
that a court may appoint a special prosecutor. It provided the
rationale for that authority and limited its exercise based on that
rationale.
11
The Court emphasized that “the rationale for the appointment
authority is necessity.” Id. at 801. In particular, “[i]f the Judiciary were
completely dependent on the Executive Branch to redress direct
affronts to its authority, it would be powerless to protect itself if that
Branch declined prosecution.” Id. According to Young, “[c]ourts
cannot be at the mercy of another Branch in deciding whether
[contempt] proceedings should be initiated,” and “[t]he ability to
appoint a private attorney to prosecute a contempt action satisfies the
need for an independent means of self-protection.” Id. at 796.
That rationale for the appointment authority informed the
limits Young put on its exercise. According to Young, “[w]hile a court
has the authority to initiate a prosecution for criminal contempt, its
exercise of that authority must be restrained by the principle that only
the least possible power adequate to the end proposed should be used
in contempt cases.” Id. at 801 (internal quotation marks and alteration
omitted). Based on that principle, the Court declared that “a court
ordinarily should first request the appropriate prosecuting authority
to prosecute contempt actions, and should appoint a private
prosecutor only if that request is denied.” Id. This instruction aimed
to “ensure[] that the court will exercise its inherent power of self-
protection only as a last resort.” Id.The rationale of Young shows why it cannot justify today’s
decision. The court purports to apply Young in upholding the
appointment of the special prosecutor, but at the same time the court
holds that the Attorney General may, in his discretion, remove the
special prosecutor and end the prosecution. If the Attorney General
has that authority, it would mean—despite the Young Court’s
repeated statements that the judiciary must have “a means to
vindicate its own authority without complete dependence on other
12
Branches,” id. at 796—that the Executive Branch can terminate a
contempt proceeding at will. That ability would leave the courts “at
the mercy of another Branch,” id., and the necessity of providing the
courts an independent means to prosecute criminal contempt could
not justify the appointment power.
The court’s conception of the district court’s appointment
power renders that power not only ineffectual but strange. According
to Young and Rule 42, the district court must request that the executive
branch prosecute the contempt, and only after the executive branch
declines may the district court appoint its own prosecutor. But today,
the court holds that if the executive branch opposes the prosecution,
it can end the prosecution immediately. In other words, the district
court’s “means to vindicate its own authority” is completely
ineffective when the executive branch does not want the contempt
prosecution to proceed. Id. at 796. The only circumstance in which the
district court’s appointment power will be useful, then, is when the
executive branch actually wants to prosecute the contempt but
declines to do so solely for lack of resources. 5
It seems to me that if the inherent judicial authority to prosecute
contempt is meant to protect the independence of the courts from the
5 According to the court, the district court’s appointment power is a
meaningful independent power even if the executive branch can
immediately remove the special prosecutor because “the judiciary could …
respond by initiating a new prosecution and appointing another special
prosecutor.” Ante at 23 n.13. The new special prosecutor could then be fired
by the executive branch, and the judiciary could respond by appointing yet
another special prosecutor, who also could be fired, and around and around
we would go. It is difficult to see how such a spectacle would empower a
court to “vindicate its own authority without complete dependence on
other Branches.” Young, 481 U.S. at 796.
13
other branches, it should be strongest when the executive branch
opposes the contempt prosecution. Young said the power to appoint
would “vindicate the jurisdiction and authority of courts to enforce
orders and to punish acts of disobedience” and ensure that the
judicial power does not become a “mere mockery.” Id. (quoting
Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911)). Today’s
decision transforms that ostensible “power of self-protection,” id. at
801, into a subsidy for the executive branch. It allows the judicial
appointment of additional executive branch prosecutors—paid out of
the judiciary’s budget 6 —when the U.S. Attorney’s office does not
want to devote its own resources to a case. 7
The court’s reliance on 28 U.S.C. § 516 further shows that it is
not faithfully following Young. The statute provides that “[e]xcept as
otherwise authorized by law, the conduct of litigation in which the
United States … is a party, … is reserved to officers of the Department
of Justice, under the direction of the Attorney General.” 28 U.S.C.
§ 516. 8 But the Supreme Court has already explained that “a fair
6 See Donziger, 2021 WL 3141893, at *51 (“[T]he Special Prosecutors are paid
for their work by the federal judiciary.”).
7 Providing judiciary-funded prosecutors to the executive branch creates
tension with Congress’s power of the purse. Congress has sought to protect
its budgetary authority over executive agencies though the Antideficiency
Act, which “is designed to keep governmental agencies operating within
the limits of their appropriated funds.” Nat’l Fed’n of Fed. Emps. v. Devine,
679 F.2d 907, 913 n.11 (D.C. Cir. 1981); see 31 U.S.C. § 1341(a)(1)(A).
According to the court, however, the special prosecutors in this case could
work for the Attorney General without drawing on the funds Congress
appropriated to the Department of Justice.
8 Section 519 contains similar language. See 28 U.S.C. § 519 (“Except as
otherwise authorized by law, the Attorney General shall supervise all litigation
14
reading of Young indicates that a federal court’s inherent authority to
punish disobedience and vindicate its authority is an excepted
provision or authorization within the meaning of §[] 516.” United
States v. Providence J. Co., 485 U.S. 693, 704 (1988). In other words, the
Supreme Court has said that the judicially initiated criminal contempt
proceedings envisioned in Young are not “reserved to officers of the
Department of Justice, under the direction of the Attorney General”
because those proceedings are “otherwise authorized by law.”
28 U.S.C. § 516.
The Court was correct to hold in Providence Journal that Young
is incompatible with direction of the contempt proceeding by the
Attorney General.9 A court would have no authority to “punish acts
of disobedience” if the contempt prosecution could proceed only at
the pleasure and direction of the executive branch. Young, 481 U.S. at
796. The Court was clear in Young that “while the exercise of the
contempt power is subject to reasonable regulation, the attributes
which inhere in that power and are inseparable from it can neither be
abrogated nor rendered practically inoperative.” Id. at 799 (internal
quotation marks omitted) (emphasis added). If the court were correct
that § 516 or another statute dictates that judicially appointed special
prosecutors are removable at will by the executive branch, then under
Young that statute would be unenforceable.
to which the United States … is a party, and shall direct all United States
attorneys, assistant United States attorneys, and special attorneys
appointed under section 543 of this title in the discharge of their respective
duties.”) (emphasis added).
9 See also Hollingsworth v. Perry, 570 U.S. 693, 711 (2013) (noting that “special
prosecutors appointed by federal courts to pursue contempt charges” are
“subject to the ultimate authority of the court that appointed them”).
15
In sum, the court’s decision today does not faithfully apply
Young but further proves that Young is no longer the law. And because
Young is the only plausible basis the court provides for the
appointment of the special prosecutor, that appointment was invalid.
III
The violation of the Appointments Clause in this case is not a
technicality. Every party and every court in these proceedings agrees
that the Attorney General may remove the special prosecutor—
despite the inconsistency of that conclusion with Young. That
consensus confirms the obvious: criminal contempt prosecution is an
executive function, and the special prosecutors exercise executive
power.
“The prosecution of offenses against the United States is an
executive function within the exclusive prerogative of the Attorney
General.” United States v. Cox, 342 F.2d 167, 190 (5th Cir. 1965)
(Wisdom, J., concurring); see also Morrison v. Olson, 487 U.S. 654, 691
(1988) (“There is no real dispute that the functions performed by the
independent counsel are ‘executive’ in the sense that they are law
enforcement functions that typically have been undertaken by
officials within the Executive Branch.”). It is also undisputed where
such power must reside. “Under our Constitution, the ‘executive
Power’—all of it—is ‘vested in a President,’ who must ‘take Care that
the Laws be faithfully executed.’” Seila Law, 140 S. Ct. at 2191 (quoting
U.S. CONST. art. II, § 1, cl. 1).
That “power, in turn, generally includes the ability to remove
executive officials.” Id. at 2197. But we have consistently held for the
same reason that “[t]he Executive … has the exclusive authority to
decide whether to prosecute.” United States v. Huerta, 878 F.2d 89, 92
16
(2d Cir. 1989) (emphasis added); see also Pyke v. Cuomo, 258 F.3d 107,
109 (2d Cir. 2001) (“[C]ourts grant special deference to the executive
branch in the performance of the ‘core’ executive function of deciding
whether to prosecute.”). I agree that the President and the Attorney
General can remove a special prosecutor because without the removal
power “the President could not be held fully accountable for
discharging his own responsibilities,” Free Enter. Fund, 561 U.S. at 514,
which include the executive function of prosecution. But the initiation
of a prosecution is as much an executive function as the conduct of a
prosecution. There is no basis for holding that the executive branch
must control one but not necessarily the other. 10
10 The court draws a sharp distinction between the appointment of the
special prosecutors and the initiation of the prosecution against Donziger,
insisting that it is only “the appointment of special prosecutors that is at
issue,” ante at 27, as if Donziger were not challenging his prosecution. The
distinction is illusory. The district court appointed the special prosecutors
specifically “to prosecute Steven Donziger on the charges of criminal
contempt of court set forth in the Order to Show Cause,” as the order of
appointment makes clear. App’x 59 (emphasis added). Young similarly did
not treat the initiation of a contempt proceeding as separate from the
appointment of a prosecutor. The Supreme Court has explained that Young
“recognized that federal courts possess inherent authority to initiate
contempt proceedings for disobedience to their orders, and this authority
necessarily includes the ability to appoint a private attorney to prosecute the
contempt.” Morrison, 487 U.S. at 682 n.20 (emphasis added). At the same
time, the court ignores the very real distinction between contempt
proceedings that a court may initiate as an exercise of the Article III judicial
power—that is, the common-law power to impose “sanctions for conduct
that interfered with the orderly administration of judicial proceedings,”
United States v. Dixon, 509 U.S. 688, 694 (1993)—and the prosecution of
criminal contempt charges by an executive officer, which even the court
recognizes is an executive function. Federal courts have long “had power
17
The power “to initiate criminal investigations and
prosecutions” is a “core executive power.” Seila Law, 140 S. Ct. at 2200.
That principle is well-settled. “[T]he decision of a prosecutor in the
Executive Branch not to indict … has long been regarded as the
special province of the Executive Branch.” Heckler v. Chaney, 470 U.S.
821, 832 (1985). So uniquely executive is that power that we have said
“[f]ew subjects are less adapted to judicial review than the exercise by
the Executive of his discretion in deciding when and whether to
institute criminal proceedings, or what precise charge shall be made,
or whether to dismiss a proceeding once brought.” United States v.
HSBC Bank USA, N.A., 863 F.3d 125, 138 (2d Cir. 2017) (quoting United
States v. Ross, 719 F.2d 615, 620 (2d Cir. 1983)). In this case, the district
court went beyond reviewing the executive branch’s decision about
instituting a prosecution. The district court appointed a prosecutor
and instituted the prosecution itself. That was not a constitutional
exercise of inherent judicial authority.
to ‘inforce the observance of order,’ but those ‘implied powers’ could not
support common-law jurisdiction over criminal acts.” Id. (quoting United
States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812)). The court
points to Young’s statement that “the prosecution of in-court and out-of-
court contempts … both proceed at the instigation of the court.” Ante at 28
n.15 (quoting Young, 481 U.S. at 799). But this statement was based on
Young’s observation that “[t]he fact that we have come to regard criminal
contempt as a crime in the ordinary sense does not mean that any
prosecution of contempt must now be considered an execution of the
criminal law in which only the Executive Branch may engage.” 481 U.S. at
799-800 (internal quotation marks and citation omitted). The court does not
adhere to that understanding because it spends the first half of its opinion
explaining that the special prosecutors must be “subject to the supervision
of the Attorney General.” Ante at 21.
18
* * *
In today’s decision, the court attempts to reconcile Young with
the constitutional separation of powers. It ends up following neither.
The court’s half-hearted adherence to Young on plain error review
undermines that precedent by rendering ineffective the judicial
power Young described as necessary. The court’s split-the-baby
approach to executive power—under which the executive must have
the power to oversee a prosecution but the judiciary may decide to
initiate one—undermines the constitutional principle that “[t]he entire
‘executive Power’ belongs to the President alone.” Seila Law, 140 S. Ct.
at 2197 (quoting U.S. CONST. art. II, § 1, cl. 1).
When the U.S. Attorney declined to prosecute Donziger, he did
so as “an officer of the executive department.” Cox, 342 F.2d at 171. “It
follows, as an incident of the constitutional separation of powers, that
the courts are not to interfere with the free exercise of the
discretionary powers of the attorneys of the United States in their
control over criminal prosecutions.” Id. That is a straightforward
conclusion, and it was plainly erroneous not to reach it. I would hold
that the appointments of the special prosecutors were void, and I
would vacate Donziger’s conviction. Accordingly, I dissent.
19