In an uncharacteristic move, Justice Neil Gorsuch offers a trenchant warning about giving too much power to judges.
Can the judiciary appoint a special prosecutor to try someone that the Department of Justice refuses to prosecute? That’s the central question in Donziger v. United States, a case that the Supreme Court announced it will not hear on Monday.
That announcement leaves in place an appeals court decision, which effectively lets the courts decide to prosecute someone of their own accord, at least under certain circumstances. The Supreme Court made this announcement, however, over the objections of two justices — one of whom, Justice Neil Gorsuch, argues in a dissenting opinion that “the prosecution in this case broke a basic constitutional promise essential to our liberty.”
He’s got a point. Especially in an era where litigants with an axe to grind can choose which judge will hear their case, permitting the judiciary to decide who to prosecute — and then to hear the very same cases brought by its own court-appointed prosecutors — vests far too much power in unelected judges. If courts have this authority, it is likely to be abused by some of the most partisan judges in the country.
The Donziger case itself involves Steven Donziger, a New York attorney who, according to a federal court, defied several court orders. Eventually, the court referred Donziger to the US Attorney’s Office in Manhattan for prosecution, which “respectfully decline[d]” to bring charges against Donziger “on the ground that the matter would require resources that we do not readily have available.”
The court then invoked a federal criminal procedural rule, known as Rule 42, which empowers the court to “appoint another attorney to prosecute” an individual for criminal contempt of court when the Justice Department refuses to bring such a prosecution. Donziger was eventually convicted and sentenced to six months in prison.
But, as Gorsuch argues in his Donziger opinion, this prosecution raises grave constitutional questions. Typically, to convict someone of a federal crime, two branches of government must agree that the defendant deserves punishment. Prosecutors, part of the executive branch, must initiate a prosecution. And then a judge, a member of the judicial branch, must preside over the defendant’s trial. As Gorsuch writes, “the Constitution gives courts the power to ‘serve as a neutral adjudicator in a criminal case,’ not ‘the power to prosecute crimes.’”
In fairness, Gorsuch’s position is slightly overstated. The Constitution does provide that, under certain circumstances, “Congress may by law” vest the power to appoint prosecutors “in the Courts of Law.” But, while Gorsuch has a history of reading Congress’s authority to delegate authority to government officials far too narrowly, he makes a strong case in his Donziger dissent that Congress has not passed any law permitting court-appointed prosecutors to bring criminal contempt proceedings.
If the courts do have that power, moreover, that could remove an important check on the government’s power to send people to prison. A judge could potentially issue a completely lawless order stripping individuals of their legal rights, and then appoint special prosecutors to bring criminal charges against anyone the judge deems to be in defiance of the order.
The separation of powers issue in Donziger, briefly explained
One issue in Donziger is a dispute about the separation of powers between the executive and the judiciary. Historically, the Supreme Court has understood the power to bring prosecutions as a quintessentially executive branch function. As the Court said in United States v. Nixon (1974), “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”
Similarly, in Seila Law v. CFPB (2020) the Court held that “the ‘executive Power’ — all of it — is ‘vested in a President’” — a theory known as the “unitary executive,” which claims that any government official who wields executive authority must be responsible to the president of the United States. In practice, that means that if someone has the power to bring federal prosecutions, that individual must answer to either the president or to a presidential appointee — and the president or that appointee must have the power to fire that individual.
Yet the Court also ruled three decades earlier in Young v. United States ex rel. Vuitton et Fils SA (1987) that the judiciary has “inherent authority” to appoint prosecutors to try contempt of court cases. Without it, Young reasoned, the courts would have no authority “to punish disobedience to judicial orders … without complete dependence on other Branches.”
Although Seila Law did not explicitly overrule Young, it is difficult to reconcile the two cases. And the US Court of Appeals for the Second Circuit, which heard the Donziger case, did a pretty poor job of it. The Second Circuit held that the court-appointed prosecution of Donziger did not intrude upon the executive branch’s exclusive authority because a federal statute gives the attorney general the power to supervise and remove all federal prosecutors — who remain part of the executive branch, even if they are appointed by a judge. So even if the courts can appoint a special prosecutor, the attorney general can always remove that prosecutor if the executive branch opposes the prosecution.
But, as Second Circuit Judge Steven Menashi argued in dissent, this attempt to reconcile Seila Law and Young completely undercuts Young’s reasoning. Again, Young held that courts must have the power to appoint prosecutors so that they are not dependent on the executive branch to enforce contempt orders. But, if the attorney general has the power to cut off these prosecutions, then courts are still dependent on the executive branch to enforce these orders.
In any event, the Supreme Court will likely have to decide, in a future case, whether Young must be scrapped entirely in the wake of decisions like Seila Law. For the moment, federal judges retain the power to appoint prosecutors at least some of the time. And that gives them an extraordinary amount of power over who will be fined or incarcerated.
Congress can empower judges to appoint prosecutors, but it is unclear if it did so here
Setting aside the complicated questions about which branch has authority over contempt of court prosecutions in the absence of a federal statute assigning this authority to one branch or the other, the Constitution does sometimes permit courts to appoint federal prosecutors — but only if Congress passes a law enabling them to do so.
The court that appointed a special prosecutor to go after Donziger relied on a court-created rule — Rule 42 of the Federal Rules of Criminal Procedure — and not an act of Congress, to justify appointing a prosecutor in this case.
That said, while Rule 42 is not an act of Congress, there is a federal statute, known as the Rules Enabling Act, which permits the Supreme Court “to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts.” And the Supreme Court exercised this statutory authority when it created Rule 42.
But even if the Constitution permits Congress to delegate its power to determine when courts may appoint prosecutors to the Supreme Court, the Rules Enabling Act has an important limitation. It provides that judicial rules enacted by the Court “shall not abridge, enlarge or modify any substantive right.”
And, as Gorsuch argues in his Donziger dissent, there are serious arguments that, by allowing the judicial branch to determine both whether someone should be prosecuted and then to try that case, Rule 42 abridges such a right. As Gorsuch writes, Rule 42 potentially allows a judge to “assume the ‘dual position as accuser and decisionmaker’ — a combination that ‘violat[es the] due process’ rights of the accused.”
So what’s at stake here?
It should be emphasized that the rule announced by the Second Circuit does impose an important check on the judiciary. Though it gives the courts the power to initiate a prosecution for criminal contempt, the attorney general may still shut that prosecution down after it is underway.
But even with this limit on judicial power in effect, the Second Circuit’s decision in Donziger changes the balance of power between people accused of crimes and their government. As Menashi writes in his dissenting opinion, the Second Circuit’s rule “allows the judicial appointment of additional executive branch prosecutors — paid out of the judiciary’s budget — when the U.S. Attorney’s office does not want to devote its own resources to a case.”
It also potentially allows rogue judges to initiate prosecutions that the executive would not choose to initiate on its own, but that it may also be reluctant to terminate due to political pressure from the president’s voters.
Gorsuch’s Donziger opinion was joined by Justice Brett Kavanaugh, meaning that there are at least two votes on the Supreme Court to roll back the federal judiciary’s authority to appoint prosecutors. If a federal trial judge seriously abused this power, the Court’s three liberals could potentially join with Gorsuch and Kavanaugh to shut that abuse down.
But the Court’s decision not to hear Donziger means that, at least for the time being, lower federal court judges retain significant power to decide who should be prosecuted.
One name that looms over this dispute about whether judges can initiate prosecutions is Matthew Kacsmaryk, a Trump-appointed judge in Texas who is widely expected to issue a decision any day now seeking to remove a common abortion drug from the US market. Kacsmaryk has, to put it mildly, a record of reading the law creatively to advance conservative causes. He also has a record of asserting jurisdiction over cases and parties that he does not have any lawful authority over.
Armed with the additional power to initiate prosecutions, even if this power is limited to contempt of court cases, a partisan judge like Kacsmaryk could potentially issue a nationwide injunction prohibiting anyone from performing an abortion, even in states where it is legal. Then, because anyone who violates a court order can potentially be held in contempt, Kacsmaryk could appoint his own hand-picked prosecutors to target anyone who violates his self-imposed abortion ban.
If Kacsmaryk, or a similarly partisan judge, attempted this move today, Attorney General Merrick Garland would almost certainly fire any prosecutor that Kacsmaryk appointed. But, in a Republican administration, the attorney general would likely be much more reluctant to exercise such authority. Indeed, a Republican-led Justice Department might welcome the appointment of an array of new prosecutors focused solely on prosecuting abortion providers.
As Alexander Hamilton wrote in the Federalist Papers, the judiciary is not supposed to have this much power. It is supposed to be, in Hamilton’s words, “the weakest of the three departments of power,” in part because it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Gorsuch is right to warn us against a regime that upends this balance of power.
House Republicans are still looking for their next Benghazi. But their investigations are unpopular.
Even before they had taken control of the House, House Republicans were promising payback.
Using the powers of the various congressional committees that they would soon take over, ultraconservative House Freedom Caucus members, led by Reps. James Comer of Kentucky and Jim Jordan of Ohio, were pledging investigations of everything: the Biden family’s business practices, Hunter Biden’s laptop, the origins of the coronavirus pandemic, alleged government bias against conservatives, and the Biden administration’s border policies.
But so far, these investigations seem to be flopping. They don’t seem to be sticking in the public consciousness. They haven’t uncovered page one news about Hunter Biden’s laptop, or about the origins of Covid-19, or about a supposed government conspiracy to silence conservatives on Twitter. A bit more than two months into Republican control of the House, plenty of these investigations are well underway. Hearings have been held, letters sent, witnesses summoned, and hours spent appearing on Fox News.
The House GOP investigations also aren’t making the president’s reelection campaign untenable — many Democratic operatives suspected that was their goal — and they don’t seem to be damaging the president as many Republicans had hoped.
Of course, it’s still early, and in the more than year and a half before the 2024 presidential election, Republicans could still weaponize their committee investigations into better political cudgels. A handful of additional hearings are on the calendar, but more remain unscheduled. If Republicans had hoped to establish the same kind of cloud of confusion and innuendo that they did during the Obama years to tarnish the president’s reputation and hurt Hillary Clinton’s presidential hopes, they have yet to achieve that with Biden.
New polling provided to Vox by the progressive research group Navigator further demonstrates this trend: Half of American adults believe Republicans are overreaching in their oversight of the Biden administration, up from the 46 percent who said so in a February poll and the 30 percent who said so in January. The number who view the GOP’s investigations as a form of overreach is also rising among political independents, while Republican support for the investigations is remaining steady.
The president’s approval rating remains virtually unchanged (though it’s trended up since the midterms). House Republicans continue to be tremendously unpopular. And more Americans today see the House GOP’s oversight investigations negatively when compared to when they took control.
Americans’ feelings toward GOP oversight aren’t very positive
The big reason these investigations don’t seem to be breaking through is pretty simple: They just aren’t that popular, and never really were. And it’s not just Navigator’s polling that shows Americans aren’t very receptive to whatever comes out of these hearings. Since January, a series of Pew, NBC, and Public Policy Polling surveys have shown that most Americans don’t see these investigations as priorities for Congress, or would rather Republicans spend less time pursuing these lines of inquiry in favor of addressing more tangible, everyday issues (first among them being inflation and the cost of household goods).
For example, when Pew Research asked Americans in mid-January how they felt about the GOP’s new focus on investigating the Biden administration, the answers were pretty definitive — 65 percent worried Republicans would focus “too much,” while 32 percent thought they wouldn’t pay enough attention. Even Republicans were split closely; 42 percent of Republican adults said they thought Republicans would focus on oversight too much, compared to the 56 percent who feared lawmakers wouldn’t go far enough.
Navigator also found that a plurality of Americans don’t see these inquiries as serious, good-faith efforts at oversight — including 38 percent of independents who think they are “political stunts.”
Navigator’s chief of polling, Bryan Bennett, told me that in the runup to and aftermath of the midterms, Republicans may have misjudged just how much to play up their proposed investigations, and made a strategic error hyping up the investigations that are of least interest to Americans.
In Navigator voter focus groups in Wisconsin, Virginia, and Texas, voters seemed most open to investigations into the origins of the coronavirus pandemic, China-US trade practices, and the withdrawal from Afghanistan.
But those aren’t the investigations that House Republicans have prioritized. The panel investigating the origins of the coronavirus, for example, has only met once, earlier in March, and a second hearing is scheduled for Tuesday (scrutinizing school closures). The Foreign Affairs Committee, which is investigating the Afghanistan withdrawal, meanwhile, has sent letters to the State Department requesting more information and held one hearing on the fall of Kabul, but it did not have any witnesses from the executive branch testifying. Meanwhile, James Comer, the chair of the oversight committee, has spent hours on Fox News pushing the committee’s investigation into Hunter Biden’s laptop and the Biden family’s business practices. They’ve held one hearing already and have more planned.
These hearing topics, Bennett said, are the ones that independent voters are most likely to view with disdain and distrust. “The reasons that were cited for that included that there was kind of this broad perception that it was seen as being like a revenge list or a tit-for-tat, or a ‘get even’ list, and that it wasn’t really particularly focused on … the priorities that people want Congress to focus on.”
Comer has also managed to become Republicans’ standard-bearer for investigations, assuming the role of chief White House congressional antagonist on Fox News, Newsmax, and One America News. But the decision to take on that role also poses a problem — not many people know him outside of conservative circles, and scrutiny into his past has dredged up old allegations of abuse of a girlfriend and a shady track record of political maneuvering. (Comer’s office did not respond to a request for comment.)
Why the GOP’s investigations aren’t sticking
Beyond the general unpopularity of these investigations, Republicans have some other structural and political obstacles. Democrats are not letting these probes go on unanswered, a lesson from the Benghazi investigations during the Obama years. A collection of Democratic and progressive groups, like the Congressional Integrity Project, are working hard outside of government to paint these Republican investigations as illegitimate and the investigators as abusers of congressional power.
The White House itself is also proactively responding to various Republican lines of attack with frequent conversations with reporters, led by Ian Sams, the White House’s chief spokesperson on these investigations. Sams and the White House Counsel’s office have also gotten ahead of other potential vulnerabilities, like the discovery of classified documents at Biden’s home and private offices, by preemptively briefing reporters and blasting out clips and quotes of Comer, Jordan, and other Republicans talking about the political nature of these investigations.
There’s also a problem of novelty and nicheness. Many of the subjects that Republicans have pledged to investigate don’t feel fresh or new. Hunter Biden’s laptop and his business dealings were a 2020 matter; the Afghanistan withdrawal and coronavirus pandemic feel like years-old issues; and the questioning of social media companies and alleged government bias against conservatives are issues that may only truly resonate with the most partisan, internet-pilled Republican voters.
The oversight committee, especially, may simply be picking too many targets to pursue — it’s also investigating the conditions of January 6 defendants in the DC jail, the capital city’s legislative work, the impact of “progressivism” on the military, pandemic relief fraud, and coronavirus school closures, among many other things.
“The American public is already tired of these,” Brad Woodhouse, a senior adviser to the Congressional Integrity Project, a group of Democratic operatives, told me. “I understand there’s some support within the Republican base, but the American public writ large are already tired of these extreme tactics.”
There are also real questions about productivity: The committees simply haven’t held that many meetings, and none have featured people who have enough of a high profile to garner attention beyond niche conservative spaces. “I haven’t seen a single guy sweating under the bright lights,” Fox News host Jesse Watters complained in early March. “Are we gonna drill down on anything? Are we going to see anybody squirm and cough up the truth or at least plead the Fifth or something, so that we can start showering these goons with subpoenas? Where are the bombshells? Have the investigations even started?”
Donald Trump himself is also sucking up the energy and attention of the political press and the American public. As his presidential campaign blunders on, and a number of federal, state, and local investigations into his dealings with campaign money, classified documents, liability for January 6, and potential obstruction of justice continue, he has reinforced himself as one of Democrats’ best tools for diverting attention from the House investigations.
Finally, Republicans will also face a longer-term problem of political inertia. Given how unfavorably the public has been viewing these probes so far, they have limited time to change opinions, Bennett said. “The longer that you have these kind of [negative] ratings, the more entrenched that view is going to become, and the harder it’s going to be to recover.”
A shooting on Monday has left at least three students and three adults dead.
Three children and three adults were killed in a shooting at the Covenant School, a private Christian school, in Nashville on Monday, according to WSMV4 News. The suspect is also dead, per Nashville police.
The child victims were two 9-year-olds and one 8-year-old — Evelyn Dieckhaus, Hallie Scruggs, and William Kinney, who were students at the school. The three adult victims were staff members: Cynthia Peak, 61, a substitute teacher; Katherine Koonce, 60, the head of the school; and Mike Hill, 61, a custodian.
Police have also identified the shooter as 28-year-old Audrey Elizabeth Hale, who officers believe is a former student and who they said was transgender. Police said that Hale had drawn a detailed map of the school, including entry points, and written a manifesto. Hale — who was shot and killed by police — was armed with two “assault-type” rifles and a handgun when entering the school.
Officers noted that Hale didn’t have a criminal history and that two of the guns appeared to be obtained legally.
“Including the shooter, a total of seven persons were killed as a result of this morning’s incident at the school,” Metro Nashville Police Department spokesperson Don Aaron told reporters during a press conference.
An active shooter event has taken place at Covenant School, Covenant Presbyterian Church, on Burton Hills Dr. The shooter was engaged by MNPD and is dead. Student reunification with parents is at Woodmont Baptist Church, 2100 Woodmont Blvd. pic.twitter.com/vO8p9cj3vx
— Metro Nashville PD (@MNPDNashville) March 27, 2023