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 filed a lawsuit against him alleging 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 here.”
Yet, a majority of the court implicitly thinks the Constitution tolerates what happened here. It takes four justices to hear a case and the vote isn’t public, so all we know for sure is that Gorsuch and Kavanaugh wanted the court to take it. Per usual practice, the majority offered no explanation for rejecting the appeal.
Gorsuch’s vote actually isn’t too surprising here. This isn’t the first time he has split with other justices in favor of criminal defendants. It’s more surprising to see Kavanaugh but not any of the Democratic appointees on this side of the split. So what explains that?
It might have less to do with defendants’ rights and more to do with the separation of powers generally. That issue has split the court more politically — for example, when it comes to administrative action that Republicans might strike down or make harder to carry out on separation-of-powers grounds. Recall the arguments in the student debt relief appeal, in which we’re awaiting a decision that could split the justices along party lines, with a ruling that blocks relief under the guise of separation-of-powers concerns.
So it’s possible that Gorsuch and Kavanaugh couldn’t get two more Republican appointees to be moved by the potential abuse of a defendant’s rights, or two Democratic appointees to get worked up about the separation of powers. Supreme Court justices will say that they take cases not to right any particular wrong but to address general legal principles. The fact remains, however, that the court allowed a situation to stand here that, as Gorsuch put it, “broke a basic constitutional promise essential to our liberty.”
And speaking of SDNY, recall that federal prosecutors there passed on prosecuting Trump in the hush money case, even though they charged his former fixer, Michael Cohen, who implicated the former president in the scheme. People are right to question that decision. But if a federal judge appointed a private prosecutor against Trump for that same federal charge that prosecutors declined to bring? Then he’d have every right to complain.