May Judges Appoint Prosecutors for Criminal Contempt?
In a new draft article called Prosecuting Contempt, Aditya Bamzai and I explore the question of whether federal judges may appoint prosecutors for criminal contempt.
As a matter of current blackletter law, the answer is yes. The Supreme Court approved of judicial appointment of contempt prosecutors in a 1987 case called Young, and Rule 42 of the Federal Rules of Criminal Procedure authorizes a court to appoint non-governmental attorneys to prosecute contempt when “the interest of justice requires.”
But that blackletter answer has come under increasing pressure. Several justices and courts of appeals judges have criticized Young’s holding and reasoning, and they have suggested that the prosecution of contempt is a core executive power. These critiques have appeared, for example, in Justice Gorsuch’s dissent from the denial of cert in Donziger v. United States, Judge Menashi’s prior dissent in the same case, and Judge Katsas’s concurrence in J.G.G. v. Trump.
There are a number of thorny questions here about the Appointments Clause. For example, are prosecutors for contempt inferior officers, and if so may their appointment be vested by law in the courts, and if so has their appointment been so vested? There are also questions about constitutional principle and the separation of powers, and what powers are, as an analytical matter, core to each of the branches. And there are questions about what it means to “prosecute” contempt in the first place. Is criminal contempt totally distinct from civil contempt? Is criminal contempt a crime? Is its prosecution an executive function? If so, is investigating and ascertaining whether there is contempt also an executive function?
The tack that Aditya and I take is essentially historical. We trace two questions through time—whether federal courts have an “inherent” power of contempt (and what that means), and what distinguishes criminal contempt from civil contempt. On each point, we offer new sources and analysis.
Our view is that federal courts possess an inherent power of contempt enforcement. On this point, we distinguish two different things that could be meant by saying that a contempt power is “inherent”: (1) that federal courts have a power of contempt enforcement by default, unless changed by Congress; and (2) that federal courts have a power of contempt enforcement that cannot be changed by Congress. Our historical discussion includes letters between Jefferson and his attorney general, Ex parte Merryman, and cases from the early Republic through Michaelson; at least three of these important episodes involve federal courts considering whether to hold generals in contempt (including Major General Andrew Jackson).
We conclude that the contempt power is inherent partly in the first sense and partly in the second. That is, the contempt power is available by default in federal courts by virtue of their constitution as courts; and there is a core to the contempt power that cannot be taken away by Congress.
And we found that to determine who can prosecute criminal contempt, we had to dig into what criminal contempt actually. We therefore trace the emergence of the distinction between “civil contempt” and “criminal contempt.” Contempt of court was well recognized at the Founding and was the subject of two extensive classificatory schemes in Blackstone’s Commentaries, but “criminal contempt” was not distinguished as a separate category. We follow the trail for the civil/criminal distinction back to the NY codification in 1828 and a Chancery case in 1831. The latter case, Wellesley, is wild: an MP who was a friend of Lord Byron kidnapped his own daughter, who just happened to be a ward of Chancery at the time. He was held in contempt.
It takes a while for the distinction to solidify in the United States and in England, but the emergent distinction is between disobedience to judicial orders (civil contempt) and interference with the administration of justice (criminal contempt). Even as the labels “civil contempt” and “criminal contempt” took hold in the late nineteenth and early twentieth centuries, the Supreme Court recognized that the “criminal” label was somewhat fictive. A criminal contempt was not a crime in the ordinary sense (contra the novel and anachronistic statement of the Warren Court in Bloom).
These two lines of historical development come together in Part IV of our article, where we show that the contempt power is judicial, not executive. The ascertainment of contempt, declaration of contempt, and imposition of sanctions for contempt are judicial powers inherent in courts, and have historically been understood as essential to courts’ enforcement of their orders and protection of their processes.
We note various limiting principles as well. These sound in both the limits of the judicial power and in the prudent exercise of the judicial power (as illustrated by Ex parte Merryman). And the judicial power of ascertaining, declaring, and imposing sanctions for contempt does not extend to running prisons for contemnors: Alexander Hamilton was right that the judiciary is ultimately reliant on the executive branch for the enforcement of its judgments.
In other words, the judicial power of contempt does run out, but the question is where. As a historical matter, we conclude that ascertaining contempt and imposing sanctions for it are on the judicial side of the line, and that contempt “prosecutors” are really assistants that help the court in carrying out its thoroughly judicial power of contempt. They are not exercising executive power.
In our view, then, non-governmental attorneys appointed to prosecute contempt pursuant to Rule 42 either (1) are not inferior officers at all or (2) are inferior officers lawfully appointed by courts. In the draft, we briefly note the evidence supporting the first proposition, though we do not resolve the choice between these propositions and it ultimately does not matter: either way, it is lawful for courts to appoint contempt prosecutors pursuant to Rule 42.
As a matter of constitutional theory, lots of different answers could be given to whether a court may appoint a prosecutor for criminal contempt. As a matter of history, however, the better take is that an attorney appointed to prosecute contempt is exercising judicial power. We welcome thoughts, reactions, and corrections. We hope there’s much more in the article that will interest scholars of federal courts, separation of powers, and equity. Tolle, lege!