The U.S. Supreme Court declined on Monday to examine the constitutionality of a criminal contempt conviction for disbarred human rights lawyer Steven Donziger that was obtained by court-appointed prosecutors, prompting a dissent from Justice Neil Gorsuch, who decried the broken "constitutional promise" of having separation between judges and prosecutors (order available here).
Donziger, a New York environmental lawyer, was sentenced to six months in prison following a bench trial prosecuted for contempt by private attorneys appointed by the U.S District Court for the Southern District of New York after the Justice Department refused to do so.
Donziger argued the assignment of private attorneys violated the Constitution’s Appointments Clause. But the U.S Court of Appeals for the Second Circuit ruled that Congress had acquiesced to such arrangements.
The court did not explain its decision to deny his petition for certiorari, or review, as is typical. The justices had been deliberating over his appeal since last October.
Justice Gorsuch wrote a dissenting opinion joined by Justice Brett Kavanaugh, explaining that he would have granted the petition and reviewed the constitutionality of the conviction. In the dissent, Justice Gorsuch raised alarm over the idea that judges have the authority to appoint special prosecutors to bring criminal charges against defendants after the DOJ declines to do so.
"However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty," he wrote. "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."
Justice Gorsuch said no law permits the the federal district court to "assume the 'dual position as accuser and decisionmaker.'" "Our Constitution does not tolerate what happened here," he concluded.
Donziger famously obtained an $8.6 billion judgment against Chevron in Ecuadorian court over its predecessor's alleged pollution of rain forests and rivers in South America. In 2014, however, a New York federal court found that Donzinger obtained the judgment through fraud and racketeering and issued a nearly $1 million judgment against the attorney.
The case is Donziger v. U.S., 22-274, in the U.S. Supreme Court.