Prosecutorial discretion to bring charges is top of mind these days, as we await decisions in New York, Georgia and federally about whether former President Donald Trump will be indicted in any of those investigations. Underlying our anticipation is the assumption that prosecutors have that discretion.
But a wild appeal rejected by the Supreme Court on Monday reminds us of a rare and dubious exception to that idea. It stems from the long-running saga between lawyer Steven Donziger and oil giant Chevron. To make a very long story short: After he won a multibillion-dollar judgment against Chevron and the company sued him for fraud, Donziger was held in contempt when he failed to comply with an order requiring his surrender of electronic devices for imaging.
The judge, Lewis Kaplan in the Southern District of New York, referred the contempt case to federal prosecutors. (If Kaplan sounds familiar, he’s the judge in E. Jean Carroll’s rape and defamation case against Trump.) But SDNY declined to charge Donziger, which, one might think, would have ended the criminal matter.
Under a weird procedural rule, judges are authorized to appoint “another attorney” to prosecute contempt if the government’s attorney declines.
One would be wrong. Under a weird procedural rule, judges are authorized to appoint “another attorney” to prosecute contempt if the government’s attorney declines. That happened here, and Donziger was convicted. On Monday, the Supreme Court rejected Donziger’s separation-of-powers appeal, with Justice Neil Gorsuch dissenting and Justice Brett Kavanaugh joining him.
The two Trump appointees observed that “the prosecution in this case broke a basic constitutional promise essential to our liberty. In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.” The Constitution, Gorsuch wrote for the duo, “does not tolerate what happened…
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