The government has filed its opposition to Steven Donziger’s petition seeking Supreme Court review of his conviction of criminal contempt of court. Donziger’s social media posts suggests he thought there was some chance the government might take his side in the matter, but I cannot believe there was any real chance the government would not oppose an attempt to overturn a federal criminal conviction.
The legal question is interesting and not at all certain. A rule of criminal procedure requires the court to appoint a special prosecutor to prosecute cases of contempt of court when the government declines to do so: is the rule unconstitutional? On the one hand, the Supreme Court, which promulgated the rule, has already upheld its constitutionality, and it would seem to be necessary, in a practical sense, for the judiciary to have a way to vindicate its own interest in punishing contempts when the executive is unwilling. On the other hand, when you ask about the special prosecutor’s status under the Appointments Clause, you soon get into some deep waters.
Most likely, the key part of the government’s brief is the part that seeks to show that the case is not “certworthy.” The government points out that there is no circuit split (circuit splits are one of the most common grounds for cert. grants). It also argues that Donziger waived his arguments in the district court by failing to raise them in a timely way and thus that review is only for plain error; and that Donziger could not possibly show plain error insofar as his position might require the Supreme Court to overrule one of its earlier decisions; and that his remedy would be a new trial, but that a new trial would make no real difference as the evidence of guilt was overwhelming. I can confirm, having sat through part of the trial and followed it closely, that there really was no question about factual guilt. Finally, the government argued that Donziger has already served his sentence and has not identified any collateral consequences of his conviction. This argument would obviously be weak if Donziger’s disbarment had stemmed from his conviction, but in fact, the disbarment stemmed from the facts (or facts′) of the corrupt proceedings in Ecuador.
Donziger will, I am sure, file a reply brief, which I’ll cover when it is available.