Yesterday the Second Circuit affirmed Steven Donziger’s conviction on charges of contempt of court. Donziger did not challenge the judge’s findings of fact on appeal, and there was no real question about the facts at the trial. Instead, Donziger argued that his prosecution was unconstitutional because the prosecutor was a private lawyer appointed by the District Court under Rule 42(a)(2) of the Federal Rules of Criminal Procedure, which provides that after the court has ordered the defendant to show cause why he should not be held in contempt:

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.

To give Donziger his due, although he did not raise the issue until the day of trial, it’s a real issue, and potentially meritorious. The Constitution provides:

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.

And the precedents make it clear that an inferior officer of the United States must be subject to supervision by a principal officer, i.e., one appointed by the President with the advice and consent of the Senate. So if the private lawyer appointed a special prosecutor is an inferior officer, and if, as Donziger said, she was not subject to the necessary supervision, or if, as he said, Congress had not vested her appointment in the courts by law, then his prosecution would indeed have been unconstitutional. On the other hand, Donziger’s argument implies that Rule 42(a)(2), which the Supreme Court proposed and Congress, under the Rules Enabling Act, allowed to take effect, is unconstitutional. And because the contempt power is meant in part to vindicate the particular interests of the Judiciary, there are the courts’ own interests to consider. The politics here are scrambled, too. Donziger may be the “Boomer Hero of the Millennial Left,” but it’s usually the right that is concerned about the Appointments Clause, as part of the right’s campaign to dismantle the administrative state.

The Court’s decision is pretty straightforward. First, the court held that the a special prosecutor appointed by the court after the government declines to prosecute is an officer of the United States, because the position is a “continuing position,” i.e., the office is “not personal to a particular individual, the position is “not transient or fleeting,” and the duties are “more than incidental.” Second, the court held that the special prosecutor is subject to the Attorney General’s supervision. The court didn’t focus on whether the Attorney General actually exercise this supervisory authority, but whether he had it, and the statutes give the AG the power to replace the special prosecutor and to supervise the case. Third, the court held that the district court had not plainly erred by holding that Congress had vested the appointment of the special prosecutor in the district court. Review was for plain error only because Donziger had not raised this issue in the lower court. The court noted in particular that Congress had authorized the Supreme Court to promulgate the rules and had the power, under the statute, to reject proposed rules. The dissent, by Judge Menashi, a Trump appointee, disagreed on this point, arguing that all executive power necessarily belongs to and must be executed by the executive branch.

I don’t have much to say about the technical aspects of the decision. The important things for Letters Blogatory readers to know are:

• Donziger presented a serious issue on appeal—probably the strongest issue he has raised at any time in the whole saga. I could imagine the case coming out the other way.
• As is always the case in the Lago Agrio case, Donziger’s reaction to yesterday’s development fails to distinguish between the outcome that he wanted and the issues in the case. Donziger writes that the court “failed the test of human rights.” But the decision has nothing to do with human rights, or even with the merits of Donziger’s conviction. It has to do with a pretty technical question about the structural Constitution.
• Donziger almost certainly will seek review in the Supreme Court. He also has the option to first seek a rehearing en banc, but the Second Circuit is famously stingy about granting petitions for en banc review.