![]() ![]() Nixon (1974), “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” Historically, the Supreme Court has understood the power to bring prosecutions as a quintessentially executive branch function. One issue in Donziger is a dispute about the separation of powers between the executive and the judiciary. The separation of powers issue in Donziger, briefly explained ![]() A judge could potentially issue a completely lawless order stripping individuals of their legal rights, and then appoint special prosecutors to bring criminal charges against anyone the judge deems to be in defiance of the order. If the courts do have that power, moreover, that could remove an important check on the government’s power to send people to prison. The Constitution does provide that, under certain circumstances, “Congress may by law” vest the power to appoint prosecutors “in the Courts of Law.” But, while Gorsuch has a history of reading Congress’s authority to delegate authority to government officials far too narrowly, he makes a strong case in his Donziger dissent that Congress has not passed any law permitting court-appointed prosecutors to bring criminal contempt proceedings. In fairness, Gorsuch’s position is slightly overstated. ![]() As Gorsuch writes, “the Constitution gives courts the power to ‘serve as a neutral adjudicator in a criminal case,’ not ‘the power to prosecute crimes.’” And then a judge, a member of the judicial branch, must preside over the defendant’s trial. Prosecutors, part of the executive branch, must initiate a prosecution. Typically, to convict someone of a federal crime, two branches of government must agree that the defendant deserves punishment. Donziger was eventually convicted and sentenced to six months in prison.īut, as Gorsuch argues in his Donziger opinion, this prosecution raises grave constitutional questions. The court then invoked a federal criminal procedural rule, known as Rule 42, which empowers the court to “ appoint another attorney to prosecute” an individual for criminal contempt of court when the Justice Department refuses to bring such a prosecution. Eventually, the court referred Donziger to the US Attorney’s Office in Manhattan for prosecution, which “respectfully decline” to bring charges against Donziger “on the ground that the matter would require resources that we do not readily have available.” The Donziger case itself involves Steven Donziger, a New York attorney who, according to a federal court, defied several court orders. If courts have this authority, it is likely to be abused by some of the most partisan judges in the country. Especially in an era where litigants with an axe to grind can choose which judge will hear their case, permitting the judiciary to decide who to prosecute - and then to hear the very same cases brought by its own court-appointed prosecutors - vests far too much power in unelected judges. The Supreme Court made this announcement, however, over the objections of two justices - one of whom, Justice Neil Gorsuch, argues in a dissenting opinion that “the prosecution in this case broke a basic constitutional promise essential to our liberty.” That announcement leaves in place an appeals court decision, which effectively lets the courts decide to prosecute someone of their own accord, at least under certain circumstances. United States, a case that the Supreme Court announced it will not hear on Monday. Can the judiciary appoint a special prosecutor to try someone that the Department of Justice refuses to prosecute? That’s the central question in Donziger v. ![]()
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