United States v. Donziger, No. 21-2486 (2d Cir. 2022)
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Defendant was convicted of six counts of criminal contempt for repeatedly defying court orders, for which he was sentenced to six months’ imprisonment. He challenges the conviction, arguing that the district court’s appointment of special prosecutors under Federal Rule of Criminal Procedure 42(a)(2) violated the Appointments Clause of the United States Constitution because (1) the special prosecutors are inferior officers who were not supervised by a principal officer, and (2) Rule 42 does not satisfy the Appointments Clause requirement that “Congress . . . by Law” vest the appointment of inferior officers in the courts.
The Second Circuit affirmed Defendant’s convictions. The court first concluded that special prosecutors are officers under the Appointments Clause. Next, the court held that Defendant’s Appointments Clause arguments lack merit. First, the special prosecutors are subject to supervision by the Attorney General, who has broad statutory authority to “conduct” and to “supervise” all litigation involving the United States. This authority includes supervising—and if necessary, removing—the special prosecutors. Second, Plaintiff failed to raise his challenge to Rule 42 below, thus the court concluded conclude that the district court did not commit plain error by appointing the special prosecutors in light of directly applicable Supreme Court precedent Finally, the court concluded that the district court did not abuse its discretion by initiating prosecution against Defendant for repeatedly defying court orders for years.
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