38 F.4th 290
2d Cir.2022Background
- In 2014 the S.D.N.Y. found Steven Donziger engaged in fraud/racketeering to obtain an $8.646 billion Ecuador judgment, entered permanent injunctions and money judgments against him; Donziger repeatedly disobeyed discovery and other post-judgment orders.
- After months of noncompliance the district court issued an order to show cause (criminal contempt under 18 U.S.C. § 401(3)); the U.S. Attorney declined to prosecute for resource reasons.
- The district court appointed private counsel as special prosecutors under Federal Rule of Criminal Procedure 42(a)(2); Donziger moved to dismiss claiming Appointments Clause defects (special prosecutors are unsupervised inferior officers; Rule 42 cannot substitute for Congress).
- After trial the court found Donziger guilty on six criminal contempt counts and sentenced him to six months’ imprisonment; Donziger appealed raising Appointments Clause and abuse-of-discretion challenges.
- The Second Circuit first held the special prosecutors are Officers under the Appointments Clause (analogous to independent counsel) but rejected Donziger’s arguments: (1) the Attorney General has statutory supervisory/removal authority over such prosecutions; (2) Donziger forfeited a Rule 42 challenge so only plain-error review applied and no plain error was shown; and (3) the district court did not abuse its discretion in initiating the contempt prosecution.
Issues
| Issue | Plaintiff's Argument (Donziger) | Defendant's Argument (Government / Court-appointed prosecutors) | Held |
|---|---|---|---|
| 1) Are court‑appointed special prosecutors "Officers" under the Appointments Clause? | Special prosecutors are not "Officers" (or at least not continuing officers subject to the Clause). | They exercise significant federal prosecutorial authority and occupy a continuing position analogous to independent counsel. | Held: Yes — special prosecutors are Officers (continuing position, may last years, exercise sovereign prosecutorial power). |
| 2) If officers, were they improperly appointed because they were unsupervised inferior officers? | The special prosecutors acted as unsupervised inferior officers (requiring Presidential appointment and Senate confirmation). | Attorney General has statutory authority (e.g., 28 U.S.C. §§516–519, 518(b)) to supervise/direct/replace or remove those prosecutors. | Held: Rejected — they are inferior officers subject to supervision by the Attorney General; statutory supervision satisfies Appointments Clause. |
| 3) Is appointment under Rule 42(a) constitutional ("Congress . . . by Law" requirement)? | Rule 42 (a court rule) cannot substitute for Congress vesting appointment power; appointment under Rule 42 violates the Appointments Clause. | Young and precedent authorize judicially initiated contempt prosecutions and appointment of private prosecutors; the issue was not timely raised below and is not clearly erroneous. | Held: Donziger forfeited a specific Rule 42 challenge; on plain-error review no clear error shown given binding Supreme Court precedent (Young); claim fails. |
| 4) Did the district court abuse its discretion in initiating prosecution and imposing criminal contempt? | Court should have used least power; prosecution punitive for past acts and inappropriate given circumstances. | Donziger repeatedly defied orders for years; criminal contempt vindicates court authority and was appropriate. | Held: No abuse of discretion; criminal contempt punishment for past noncompliance was within bounds and conviction affirmed. |
Key Cases Cited
- Morrison v. Olson, 487 U.S. 654 (independent counsel may be an inferor officer; temporary positions can be offices)
- Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (courts possess inherent authority to initiate contempt proceedings and appoint private prosecutors)
- Lucia v. SEC, 138 S. Ct. 2044 (officer test: significant authority and continuing position)
- Edmond v. United States, 520 U.S. 651 (inferior officers are supervised at some level)
- Free Enter. Fund v. PCAOB, 561 U.S. 477 (removal/replace is a tool of control over inferior officers)
- United States v. Providence Journal Co., 485 U.S. 693 (reconciliation of §516 with judicially initiated contempt prosecutions)
- Bagwell v. Int’l Union, United Mine Workers of Am., 512 U.S. 821 (distinguishing civil and criminal contempt; criminal contempt vindicates court authority)
- Seila Law LLC v. CFPB, 140 S. Ct. 2183 (executive power and removal principles)