YOUNG v. UNITED STATES EX REL. VUITTON ET FILS S. A. ET AL.
No. 85-1329
SUPREME COURT OF THE UNITED STATES
Argued January 13, 1987-Decided May 26, 1987*
481 U.S. 787
*Together with No. 85-6207, Klayminc v. United States ex rel. Vuitton et Fils S. A. et al., also on certiorari to the same court.
James A. Cohen argued the cause for petitioners. With him on the briefs were Leonard J. Comden and William Weininger.
Deputy Solicitor General Bryson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, Edwin S. Kneedler, and Gloria C. Phares.
J. Joseph Bainton argued the cause for respondents. With him on the brief was Robert P. Devlin.
JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, and an opinion with respect to Part III-B, in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join.
Petitioners in these cases were found guilty of criminal contempt by a jury, pursuant to
I
The injunction that petitioners violated in these cases is a result of the settlement of a lawsuit brought in December 1978, in the District Court for the Southern District of New York, by Louis Vuitton, S. A., a French leather goods manufacturer, against Sol Klayminc, his wife Sylvia, his son Barry (the Klaymincs), and their family-owned businesses, Karen Bags, Inc., Jade Handbag Co., Inc., and Jak Handbag, Inc. Vuitton alleged in its suit that the Klaymincs were manufacturing imitation Vuitton goods for sale and distribution. Vuitton‘s trademark was found valid in Vuitton et Fils S. A. v. J. Young Enterprises, Inc., 644 F. 2d 769 (CA9 1981), and Vuitton and the Klaymincs then entered into a settlement agreement in July 1982. Under this agreement, the Klaymincs agreed to pay Vuitton $100,000 in damages, and consented to the entry of a permanent injunction prohibiting them from, inter alia, “manufacturing, producing, distributing, circulating, selling, offering for sale, advertising, promoting or displaying any product bearing any simulation, reproduction, counterfeit, copy, or colorable imitation” of
In early 1983, Vuitton and other companies concerned with possible trademark infringement were contacted by a Florida investigation firm with a proposal to conduct an undercover “sting” operation. The firm was retained, and Melvin Weinberg and Gunner Askeland, two former Federal Bureau of Investigation agents, set out to pose as persons who were interested in purchasing counterfeit goods. Weinberg expressed this interest to petitioner Nathan Helfand, who then discussed with Klayminc and his wife the possibility that Weinberg and Askeland might invest in a Haitian factory devoted to the manufacture of countеrfeit Vuitton and Gucci goods. Klayminc signed documents that described the nature of the factory operation and that provided an estimate of the cost of the counterfeited goods. In addition, Klayminc delivered some sample counterfeit Vuitton bags to Helfand for Weinberg and Askeland‘s inspection.
Four days after Helfand met with Klayminc, on March 31, 1983, Vuitton attorney J. Joseph Bainton requested that the District Court appoint him and his colleague Robert P. Devlin as special counsel to prosecute a criminal contempt action for violation of the injunction against infringing Vuitton‘s trademark. App. 18. Bainton‘s affidavit in support of this request recounted the developments with Helfand and Klayminc and pointed out that he and Devlin previously had been appointed by the court to prosecute Sol Klayminc for contempt of an earlier preliminary injunction in the Vuitton lawsuit. Bainton also indicated that the next step of the “sting” was to be a meeting among Sol and Barry Klayminc, Weinberg, and Askeland, at which Sol was to deliver 25 counterfeit Vuitton handbags. Bainton sought permission to conduct and videotape this meeting, and to continue to engage in undercover investigative activity.
The court responded to Bainton on the day of this request. It found probable cause to believe that petitioners were en-
Over the course of the next month, more than 100 audio and video tapes were made of meetings and telephone conversations between petitioners and investigators. On the basis of this evidence, Bainton requested, and the District Court signed, an order on April 26 directing petitioners to show cause why they and other parties should not be cited for contempt for either violating or aiding and abetting the violation of the court‘s July 1982 permanent injunction. App. to Pet. for Cert. 205-A. Petitioners’ pretrial motions opposing the order to show cause and the appointment of Bainton and Devlin as special prosecutors were denied, United States ex rel. Vuitton et Fils S. A. v. Karen Bags, Inc., 592 F. Supp. 734 (SDNY 1984), and two of the defendants subsequently entered guilty pleas. Sol Klayminc ultimately was convicted, following a jury trial, of criminal contempt under
II
A
Petitioners first contend that the District Court lacked authority to appoint any private attorney to prosecute the contempt action against them, and that, as a result, only the United States Attorney‘s Office could have permissibly brought such a prosecution. We disagree. While it is true that
“That the power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law. It is essential to the administration of justice. The courts of the United States, when called into existence and vested with jurisdiction over any subject, at once became possessed of the power.” Id., at 65-66.7
Judge Hand suggested that if the trial court decides to use the attorney of a party to the underlying dispute to prosecute the action, the criminal nature of the proceeding would be made plain by the entry of an order directing the attorney to prosecute the defendant criminally on behalf of the court. Ibid.
The Advisory Committee‘s Notes to
The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches. “If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls ‘the judicial power of the United States’ would be a mere mockery.” Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450 (1911). As a result, “there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience.” Ibid. 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, without which courts would be “mere boards of arbitration whose judgments and decrees would be only advisory.” Ibid.8
Petitioners contend that the ability of courts to initiate contempt prosecutions is limited to the summary punishment of in-court contempts that interfere with the judicial process. They argue that out-of-court contempts, which require prosecution by a party other than the court, are essentially conventional crimes, prosecution of which may be initiated only by the Executive Branch.
The underlying concern that gave rise to the contempt power was not, however, merely the disruption of court proceedings. Rather, it was disobedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial. See Bessette v. W. B. Conkey Co., 194 U. S. 324, 333 (1904) (contempt power “has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary course 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); Ex parte Robinson, 19 Wall. 505, 510 (1874) (existence of contempt power “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); Anderson v. Dunn, 6 Wheat. 204, 227 (1821) (courts by their creation vested with power “to impose silence, respect, and decorum in their presence, and submission to their lawful mandates“) (emphasis added).
The distinction between in-court and out-of-court contempts has been drawn not to define when a court has or has not the authority to initiate prosecution for contempt, but for the purpose of prescribing what procedures must attend the exercise of that authority. As we said in Bloom v. Illinois, 391 U. S. 194, 204 (1968), “[b]efore the 19th century was out, a distinction had been carefully drawn between contempts occurring within the view of the court, for which a hearing and formal presentation of evidence were dispensed with, and all other contempts where more normal adversary procedures were required.” Thus, for instance, this Court has found that defendants in criminal contempt proceedings must be presumed innocent, proved guilty beyond a reasonable doubt, and accorded the right to refuse to testify against themselves, Gompers, supra, at 444; must be advised of
The manner in which the court‘s prosecution of contempt is exercised therefore may be regulated by Congress, Michaelson, 266 U. S., at 65-66, and by this Court through constitutional review, Bloom, supra, at 201-208, or supervisory power, Cheff v. Schnackenberg, 384 U. S. 373, 384 (1966). However, while the exercise of the cоntempt 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.” Michaelson, supra, at 66. Thus, 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.
The fact that we have come to regard criminal contempt as “a crime in the ordinary sense,” Bloom, supra, at 201, does not mean that any prosecution of contempt must now be con-9
Petitioners’ assertion that the District Court lacked authority to apрoint a private attorney to prosecute the contempt action in these cases is thus without merit. While contempt proceedings are sufficiently criminal in nature to warrant the imposition of many procedural protections, their fundamental purpose is to preserve respect for the judicial system itself. As a result, courts have long had, and must
C
While 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 ‘[t]he least possible power adequate to the end proposed’ should be used in contempt cases.” United States v. Wilson, 421 U. S. 309, 319 (1975) (quoting Anderson v. Dunn, 6 Wheat., at 231). We have suggested, for instance, that, when confronted with a witness who refuses to testify, a trial judge should first consider the feasibility of prompting testimony through the imposition of civil contempt, utilizing criminal sanctions only if the civil remedy is deemed inadequate. Shillitani v. United States, 384 U. S. 364, 371, n. 9 (1966).
This principle of restraint in contempt counsels caution in the exercise of the power to appoint a private prosecutor. We repeat that the rationale for the appointment authority is necessity. If 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 logic of this rationale is that a court ordinarily should first request the appropriate prosecuting authority to prosecute contempt actions, аnd should appoint a private prosecutor only if that request is denied. Such a procedure ensures that the court will exercise its inherent power of self-protection only as a last resort.
In practice, courts can reasonably expect that the public prosecutor will accept the responsibility for prosecution. Indeed, the United States Attorney‘s Manual § 9-39.318 (1984) expressly provides: “In the great majority of cases the dedication of the executive branch to the preservation of respect for judicial authority makes the acceptance by the U. S. Attorney of the court‘s request to prosecute a mere formality ....” Referral will thus enhance the prospect that investi-
In this case, the District Court did not first refer the case to the United States Attorney‘s Office before the appointment of Bainton and Devlin as special prosecutors.12 We need not address the ramifications of that failure, however. Even if a referral had been made, we hold, in the exercise of our supervisory power, that the court erred in appointing as prosecutors counsel for an interested party in the underlying civil litigation.
III
A
In Berger v. United States, 295 U. S. 78, 88 (1935), this Court declared:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and vеry definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer.”
This distinctive role of the prosecutor is expressed in Ethical Consideration (EC) 7-13 of Canon 7 of the American Bar Association (ABA) Model Code of Professional Responsibility (1982): “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.”
Because of this unique responsibility, federal prosecutors are prohibited from representing the Government in any matter in which they, their family, or their business associates have any interest.
Private attorneys appointed to prosecute a criminal contempt action represent the United States, not the party that is the beneficiary of the court order allegedly violated. As we said in Gompers, criminal contempt proceedings arising out of civil litigation “are between the public and the defendant, and are not a part of the original cause.” 221 U. S., at 445. The prosecutor is appointed solely to pursue the public interest in vindication of the court‘s authority. A private attorney appointed to prosecute a criminal contempt therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.15
Regardless of whether the appointment of private counsel in this case resulted in any prosecutorial impropriety (an issue on which we express no opinion), that appointment illustrates the potential for private interest to influence the discharge of public duty. Vuitton‘s California litigаtion had culminated in a permanent injunction and consent decree in favor of Vuitton against petitioner Young relating to various trademark infringement activities. This decree contained a liquidated damages provision of $750,000 for violation of the injunction. The prospect of such a damages award had the potential to influence whether Young was selected as a target
contempt action must reckon with the proscriptions on conflicts of interest applicable to all lawyers. See n. 11, supra.
The requirement of a disinterested prosecutor is consistent with our recognition that prosecutors may not necessarily be held to as stringent a standard of disinterest as judges. “In an adversary system, [prosecutors] are necessarily permitted to be zealous in their enforcement of the law,” Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980). We have thus declined to find a conflict of interest in situations where the potential for conflict on the part of a judge might have been intolerable. See id., at 250-252 (fact that sums collected as civil penalties returned to agency to defray administrative costs presented too remote a potential for conflict in agency enforcement efforts). Ordinarily we can only speculate whether other interests are likely to influence an enforcement officer, and it is this speculation that is informed by appreciation of the prosecutor‘s role. In a case where a prosecutor represents an interested party, however, the ethics of the legal profession require that an interest other than the Government‘s be taken into account. Given this inherent conflict in roles, there is no need to speculate whether the prosecutor will be subject to extraneous influence.18
As we said in Bloom, “In modern times, procedures in criminal contempt cases have come to mirror those used in ordinary criminal cases.” 391 U.S., at 207. The requirement of a disinterested prosecutor is consistent with that trend, since “[a] scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision.”19
The use of this Court‘s supervisory authority has played a prominent role in ensuring that contempt proceedings are conducted in a manner consistent with basic notions of fairness. See, e. g., Cheff, 384 U.S., at 380 (requiring jury trial for imposition of contempt sentences greater than six months); Yates v. United States, 356 U.S. 363, 366-367 (1958) (reducing contempt sentence in light of miscalculation
B
The next question we must confront is whether the Government should have the opportunity to demonstrate that it was harmless error for the court to appoint counsel for an interested party as contempt prosecutor. See Chapman v. California, 386 U.S. 18 (1967).21 We have held that some errors “are so fundamental and pervasive that they require
An error is fundamental if it undermines confidence in the integrity of the criminal proceeding. Rose v. Clark, 478 U.S. 570, 577-578 (1986); Van Arsdall, supra, at 681-682; Vasquez v. Hillery, 474 U.S. 254, 263-264 (1986). The appointment of an interested prosecutor raises such doubts. Prosecution by someone with conflicting loyalties “calls into question the objectivity of those charged with bringing a defendant to judgment.” Vasquez, supra, at 263. It is a fundamental premise of our society that the state wield its formidable criminal enforcement powers in a rigorously disinterested fashion, for liberty itself may be at stake in such matters. We have always been sensitive to the possibility that important actors in the criminal justice system may be influenced by factors that threaten to compromise the performance of their duty. We have held, for instance, that it cannot be harmless error for racial discrimination to infect the selection of the grand jury, Vasquez, supra; for a petit jury to be exposed to publicity unfavorable to the defendant, Sheppard v. Maxwell, 384 U.S. 333, 351-352 (1966); or for adjudication to be performed by a judicial officer faced with a conflict of interest, Ward v. Village of Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio, 273 U.S. 510 (1927).
It is true that we have indicated that the standards of neutrality for prosecutors are not necessarily as stringent as those applicable to judicial or quasi-judicial officers. See Jerrico, 446 U.S., at 248-250.22 This difference in treatment is relevant to whether a conflict is found, however, not
Furthermore, appointment of an interested prosecutor creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general. The narrow focus of harmless-error analysis is not sensitive to this underlying concern. If a prosecutor uses the expansive prosecutorial powers to gather information for private purposes, the prosecution function has been seriously abused even if, in the process, sufficient evidence is obtained to convict a defendant. Prosecutors “have available a terrible array of coercive methods to obtain information,” such as “police investigation and interrogation, warrants, informers and agents whose activities are immunized, authorized wiretapping, civil investigatory demands, [and] enhanced subpoena power.” C. Wolfram, Modern Legal Ethics 460 (1986). The misuse of those methods “would unfairly harass citizens, give unfair advantage to [the prosecutor‘s personal interests], and impair public willingness to accept the legitimate use of those powers.” Ibid. Notwithstanding this concern, the determination whether an error was harmful focuses only on “whether there is a reasonable possibility that the [error] complained of might have contributed to the conviction.” Chapman, supra, at 23 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). A concern for actual prejudice in such circumstances misses the point, for what is at stake is the public perception of the integrity of our criminal justice system. “[J]ustice must satisfy the appearance of justice,” Offutt, supra, at 14, and a prosecutor
Appointment of an interested prosecutor is also an error whose effects are pervasive. Such an appointment calls into question, and therefore requires scrutiny of, the conduct of an entire prosecution, rather than simply a discrete prosecutorial decision. Determining the effect of this appointment
“In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihоod that the error materially affected the deliberations of the jury. But in a case of joint representation of conflicting interests the evil—it bears repeating—is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney‘s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney‘s representation of a client. And to assess the impact of a conflict of interests on the attorney‘s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.” (Citations omitted.)
Cf. Vasquez, 474 U.S., at 264 (“Once having found discrimination in the selection of a grand jury, we simply cannot know that the need to indict would have been assessed in the same way by a grand jury properly constituted“).
The case before us involves the citizen‘s primary adversary in a criminal proceeding, who is armed with expansive powers and wide-ranging discretion. Public confidence in the disinterested conduct of that official is essential. Harmless-
IV
Between the private life of the citizen and the public glare of criminal accusation stands the prosecutor. That state official has the power to employ the full machinery of the state in scrutinizing any given individual. Even if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life. For this reason, we must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice. A prosecutor of a contempt action who represents the private beneficiary of the court order allegedly violated cannot provide such assurance, for such an attorney is required by the very standards of the profession to serve two masters. The appointment of counsel for Vuitton to conduct the contempt prosecution in these cases therefore was improper. Accordingly, the judgment of the Court of Appeals is
Reversed.
JUSTICE BLACKMUN, concurring.
I join JUSTICE BRENNAN‘s opinion. I would go further, however, and hold that the practice—federal or state—of
JUSTICE SCALIA, concurring in the judgment.
I agree with the Court that the District Court‘s appointment of J. Joseph Bainton and Robert P. Devlin as special counsel to prosecute petitioners for contempt of an injunction earlier issued by that court was invalid, and that that action requires reversal of petitioners’ convictions. In my view, however, those appointments were defective because of a failing more fundamental than that relied upon by the Court. Prosecution of individuals who disregard court orders (except orders necessary to protect the courts’ ability to function) is not an exercise of “[t]he judicial power of the United States,”
I
With the possible exception of the power to appoint inferior federal officers, which is irrelevant to the present cases,1
the only power the Constitution permits to be vested in federal courts is “[t]he judicial power of the United States.”
The judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy. See
These well-settled general principles are uncontested. The Court asserts, however, that there is a special exception for prosecutions of criminal contempt, which are the means of securing compliance with court orders. Unless these can be prosecuted by the courts themselves, the argument goes, efficaciousness of judicial judgments will be at the mercy of the Executive, an arrangement presumably too absurd to contemplate. Ante, at 796.
Far from being absurd, however, it is a carefully designed and critical element of our system of Government. There are numerous instances in which the Constitution leaves open the theoretical possibility that the actions of one Branch may be brought to nought by the actions or inactions of another. Such dispersion of power was central to the scheme of forming a Government with enough рower to serve the expansive purposes set forth in the preamble of the Constitution, yet one that would “secure the blessings of liberty” rather than use its power tyranically. Congress, for example, is dependent on the Executive and the courts for enforcement of the laws it enacts. Even complete failure by the Executive to prosecute law violators, or by the courts to convict them, has never been thought to authorize congressional prosecution and trial. The Executive, in its turn, cannot perform its function of enforcing the laws if Congress declines to appropriate the necessary funds for that purpose; or if the courts decline to entertain its valid prosecutions. Yet no one sug-
The Founding Fathers, of a certainty, thought that they were not. It is instructive to compare the Court‘s claim that “[c]ourts cannot be at the mercy of another branch in deciding whether [contempt] proceedings should be initiated,” ante, at 796, with the views expressed in one of the most famous passages from The Federalist:
“[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. ... The judiciary ... has no influence over either the sword or the purse, no direction either of the strength or of the wеalth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The Federalist No. 78, pp. 522-523 (J. Cooke ed. 1961) (A. Hamilton) (emphasis added).
Even as a purely analytic proposition the Court‘s thesis is faulty, because it proves too much. If the courts must be able to investigate and prosecute contempt of their judgments, why must they not also be able to arrest and punish those whom they have adjudicated to be in contempt? Surely the Executive‘s refusal to enforce a judgment of contempt would impair the efficacy of the court‘s acts at least as much as its failure to investigate and prosecute a contempt. Yet no one has ever supposed that the Judiciary has an inherent power to arrest and incarcerate.
The Court appeals to a “longstanding acknowledgment that the initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function.” Ante, at 795. Except, however, for a line of cases beginning in 1895 with In re Debs, 158 U.S. 564, whose holding and rationale we have since repudiated, no holding of this Court has ever found inherent judicial power to punish those violating court judgments with contempt, much less to appoint officers to prosecute such contempts. Our first reference to the special status of the federal courts’ contempt powers appeared in United States v. Hudson, 7 Cranch 32 (1812), where the question presented was whether circuit courts had the power to decide common-law criminal cases. Congress had not conferred such power, but the prosecution argued that it was part of the National Government‘s inherent power to preserve its own existence. Id., at 33-34. The Court ruled that such an argument could establish, at most, that Congress had inherent power to pass criminal laws, not that the federal courts had inherent power without legislation to adjudge common-law crimes. At the end of its discussion, the Court noted:
“Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt—imprison for contumacy—inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.” Id., at 34.
Thus, the holding of Hudson was against the existence of broad inherent powers in the federal courts. Its discussion
Nine years later, in Anderson v. Dunn, 6 Wheat. 204, 227 (1821), the Court reiterated its view that the contempt power was an inherent component of the judicial power. That case presented аn issue more closely related to the questions of the source and scope of the federal courts’ contempt power, although still not directly on point: whether the House of Representatives could direct its Sergeant at Arms to seek out a person who had disrupted its proceedings, bring him before the House to be tried for contempt, and hold him in custody until completion of the proceedings. The Court noted that “there is no power given by the constitution to either House to punish for contempts, except when committed by their own members,” id., at 225, and that
“if this power ... is to be asserted on the plea of necessity, the ground is too broad, and the result too indefinite; ... the executive, and every co-ordinate, and even subordinate, branch of government, may resort to the same justification, and the whole assume to themselves, in the exercise of this power, the most tyrannical licentiousness.” Id., at 228.
Nevertheless, the Court upheld the House‘s action, concluding that any other course “leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it.” Ibid.
It was in the course of recognizing this limited power of self-defense in the House that the Court pronounced the dictum cited in today‘s opinion that “[c]ourts of justice are uni-
I recognize, however, that the narrow principle of necessity underlying Anderson—that the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively—does have logical application to the federal courts’ contempt powers. But that principle would at most require that courts be empowered to prosecute for contempt those who interfere with the orderly conduct of their business or disobey orders necessary to the conduct of that business (such as subpoenas). It would not require that they be able to prosecute and punish, not merely disruption of their functioning, but disregard of the product of their functioning, their judgments. The correlative of the latter power, in the congressional context, would be an inherent power on the part of Congress to prosecute and punish disobedience of its laws—which neither Anderson nor any rational person would suggest. I can imagine no basis, except self-love, for limiting
III
Our only holdings conferring an inherent contempt power to enforce judgments emanate from In re Debs, 158 U.S. 564 (1895), whose outcome and reasoning we have disapproved. There a Circuit Court, which had enjoined union officers and organizers from engaging in activities disruptive of interstate rail traffic, held them in contempt for failing to comply with the injunction and sentenced them to jail for terms from three to six months. This Court rejected the argument that they had thereby been deprived of their right to a jury trial, stating:
“[T]he power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. And this is no technical rule. In order that a court may compel obedience to its orders it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.” Id., at 594-595.
At the time, many considered Debs a dangerous decision, see Dunbar, Government by Injunction, 13 L. Q. Rev. 347 (1897); Gregory, Government by Injunction, 11 Harv. L. Rev. 487 (1898); Lewis, Strikes and Courts of Equity, 46 Am.
The Court argues that Bloom does not control these cases, because “[t]he fact that we have come to regard criminal contempt as ‘a crime in the ordinary sense,’ Bloom, supra, at 201, 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.” Ante, at 799-800. To this argument it could be added that Bloom did not draw the distinction relied on here between the narrow Anderson necessity principle, that the courts must be able to conduct their business free of interference, and the broad necessity principle, that courts must be able to do anything required to give effect to their decisions.
Finally, the Court suggests that the various procedural protections that the Constitution requires us to provide contemners undercut the separation-of-powers argument against judicial prosecution. Ante, at 799, n. 9. The reverse argument—that the structural provisions of the Constitution were not only sufficient but indeed were the only sure mechanism for protecting liberty—was made against adoption of a Bill of Rights. Ultimately, the people elected to have both checks. The Court is right that disregard of one of these raises less of a prospect of “tyrannical licentiousness” than
I would therefore hold that the federal courts have no power to prosecute contemners for disobedience of court judgments, and no derivative power to appoint an attorney to conduct contempt prosecutions. That is not to say, of course, that the federal courts may not impose criminal sentences for such contempts. But they derive that power from the same source they derive the power to pass on other crimes which it has never been contended they may prosecute: a statute enacted by Congress criminalizing the conduct which has been on the books in one form or another since the Judiciary Act of 1789, supra, at 821. See
IV
I agree with the Court that the District Judge‘s error in appointing Bainton and Devlin to prosecute these contempts requires reversal of the conviсtions. The very argument given for permitting a court to appoint an attorney to prosecute contempts—that the United States Attorney might exercise his prosecutorial discretion not to pursue the contemners—makes clear that that is the result required. In light of the discretion our system allows to prosecutors, which is so broad that we ordinarily find decisions not to prosecute unreviewable, see Heckler v. Chaney, 470 U.S. 821 (1985), it would be impossible to conclude with any certainty that these prosecutions would have been brought had the court simply referred the matter to the Executive Branch.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O‘CONNOR join, concurring in part and dissenting in part.
In this case, the District Court appointed counsel for a party in a civil suit as a prosecutor in a related criminal contempt proceeding. The Court of Appeals for the Second Circuit found that the District Court did not abuse its discretion in making such an appointment. The Court today reaches a contrary conclusion. I agree that the District Court abused
The ethical rules of the legal profession prohibit representation of two clients who “may have differing interests.” Ethical Consideration 5-14, American Bar Association, Model Code of Professional Responsibility (1982) (emphasis added). This is the situation the Court today correctly finds to exist. I agree that “the appointment of counsel for an interestеd party to bring the contempt prosecution in this case at a minimum created opportunities for conflicts to arise.” Ante, at 806 (emphasis in original). A prosecutor occupies a unique role in our criminal justice system and it is essential that he carry out his duties fairly and impartially. Where a private prosecutor appointed by a District Court also represents an interested party, the possibility that his prosecutorial judgment will be compromised is significant. This potential for a conflict of interest warrants an exercise of this Court‘s supervisory powers to hold that it is improper to appoint such a lawyer to prosecute a charge of criminal contempt.
While the potential for prosecutorial impropriety may justify the conclusion that such appointments are inappropriate, it does not justify invalidation of the conviction and sentence in this case. Even where constitutional errors are found to have occurred, this Court has found harmless-error analysis to be appropriate. Chapman v. California, 386 U.S. 18 (1967). As the Court recently noted: “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579 (1986).
Here, the error is not of constitutional dimension. Moreover, the defendants had counsel and were convicted of crimi-
Although this Court has the authority to review a record to evaluate a harmless-error claim, United States v. Hasting, 461 U.S. 499, 510 (1983), I share the Court‘s concern that the effect of conflicting interests on the integrity of prosecutorial decisions may be subtle. Accordingly, I would remand these cases to the Court of Appeals—in light of our decision today—to determine whether the error of appointing the private attorney to prosecute the contempt proceeding at issue was harmless.
JUSTICE WHITE, dissenting.
I agree with the Court that as a general rule contempt cases such as this should in the first instance be referred to the United States Attorney and that a district court‘s well-established authority to appoint private counsel to prosecute should be exercised only after that official declines to prosecute. I would also prefer that district courts not appoint the attorney for an interested party to prosecute a contempt case such as this. But as I understand Rule 42, it was intended to embrace the prior practice and to authorize, but not to require, the appointment of attorneys for interested parties. I would leave amendment of the Rule to the rulemaking process. I agree with the Court of Appeals that there was no error, constitutional or otherwise, in the appointments made in this action and that petitioners were not denied due process of law by being tried and convicted of contempt. Because I discern no ground for concluding that petitiоners did not receive a fair trial, I would affirm the Court of Appeals.