Steven Donziger’s appeal of his conviction for contempt of court is now fully briefed. Here they are:
It seems pretty clear that unless the court can avoid deciding the constitutional question, the appeal is going to come down to the constitutionality of the prosecution by a special prosecutor appointed by the court. By way of background, Rule 42(a)(2) of the Federal Rules of Criminal Procedure provides:
The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.
And the Appointments Clause, in Article II of the Constitution, provides that the president:
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Judge Preska’s opinion was that there was no constitutional violation, because although the special prosecutor was an officer of the United States for constitutional purposes, Donziger had failed to show that she was unsupervised by the DOJ. Donziger’s argument is that the special prosecutor is an officer for constitutional supervision but was not supervised, and thus her exercise of executive power was unconstitutional. The DOJ threw a bit of a curveball and took the position that the special prosecutor, because of the limited scope and duration of her authority, was not an officer at all for constitutional purposes. The special prosecutor took the position, in light of the DOJ’s argument, that she was not an officer, but that if she was, she was subject to sufficient supervision.
How will this come out? I have no idea. I do think, if I were one of the judges, that I would want to avoid deciding the question if possible. And there are a couple of pathways that would allow the court to avoid the difficult issue. First, the special prosecutor’s lead argument, citing Rule 12 of the Federal Rules of Civil Procedure, is that the Donziger waived the constitutional issue by failing to raise it until the first day of trial. On the other hand, the special prosecutor did not raise the untimeliness in the lower court. Second, and perhaps less likely as the parties have not briefed it, Judge Preska made a point of finding that Donziger had not submitted admissible evidence to show a lack of supervision, and thus the court could conceivably decide that the constitutional argument fails on the facts without having to rule on the law.
Here is what I want people generally interested in the case from an environmental perspective, or a human rights defender perspective, or some other perspective, to see and understand. The issue that the case is likely to turn on has nothing to do with the things you are interested in. And a decision against Donziger would not mean that the judges, or the government, disagrees with your environmental or other concerns. Nor would it have anything to do with Donziger’s factual guilt or innocence. Indeed, Donziger doesn’t even argue that the judge got the facts wrong when she found him guilty. By the same token, a decision for Donziger would not mean that the judges or the government, agrees with you, or that Donziger is factually innocent! I have read an awful lot of coverage of the case online, and it seems to me that this is the one point, more than any other, that people have difficulty understanding.
I am very free with the lessons for other people; what lessons have I myself taken from the Donziger case? The main thing I have learned is a new skepticism about the news and media. Like most people who try to keep up with the news, the news is my main source of information about important stories. In other words, I don’t read the primary documents; I rely on the news to tell me what’s going on. But in the Donziger case, I have read the primary documents and believe that I have a pretty good grasp of the story based on my own study. So when I see that the great majority of what’s written, even by those who should know better, seems to get the case wrong in the big things and the little things, it makes me doubt whether any news I read is really reliable. If there’s a complex story in the paper, how can I be confident that my impression of the rights and wrongs are reasonable unless I can trust the basic reporting? This is the reason why inaccurate posts and statements by partisans, especially in our awful media environment, are so irresponsible: they contribute to an overall climate that disempowers citizens by calling the possibility of knowledge and informed opinion into question.