Without delving into the specifics of this particular case and whether the contempt charge was justified, the norm breakers are arguably the DOJ declining to prosecute.
Appointing private prosecutors when the government declines to prosecute seems to be the norm within the law on criminal contempt.
The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.
Itâs thornier than that. The question is what to do when one side including people in the legal system itself are breaking norms to further their own personal goals. If your answer is categorically follow norms no matter what, then you are purely accepting subjugation and defeat.
Sure, but itâs more true in the rich countries that they just make corruption legal. Appointing the plaintiff in a prior suit as the prosecutor in a subsequent criminal case? Thatâs legal. Rule of Law!
Wanna bribe politicians? Ok, just donate unlimited amounts of money anonymously to their fan club. Totally legal.
But also, as bad as it is here, Chevronâs revenue is 20 times as large as the Ecuadorian governmentâs budget. They can push Ecuador around without trying.
I would not be surprised if this is what usually happens when the DOJ declines to prosecute criminal contempt, but IANAL. I do not know how often the DOJ declines to prosecute. Obviously, how the judge and prosecutors selected stinks, but letâs not act like they manipulated things to put private lawyers instead of government lawyers in charge of this.
Would we have wanted the court or be able to do this if there was a non-prosecution decision by the DOJ during the Trump administration?
Me? No. Private prosecutors are ridiculous. Private prosecutors associated with the plaintiff from a preceding case involving the defendant are triple ridiculous.
Sorry for the big derail. Arresting the people protesting cop city and even threatening to hold 20 year sentences over their heads is disgusting and depressing. Those people failed to obey and maybe broke some laws. They also tried to get attention.
Yeah I think we are saying the same thing, in different words. Or the same words. Maybe even the same tone? Like heavy scare quotes around Rule Of Law, since itâs calvinball rules, and does calvinball actually have rules even if the non-rules are called rules⌠philosophical stuff
Itâs difficult to find a definitive answer but signs seem to point to it being really rather unusual both in deciding to engage a private prosecution team and in the specific law firm chosen.
Thereâs this tiny and possibly biased sample from âCourthouse Newsâ - which I accept is unlikely to be an authority:
"Courthouse News reached out to five former federal prosecutors âincluding veterans from the Southern District of New York, District of Alabama and the Northern District of Californiaâ seeking precedent for the maneuver.
Despite a combined total of more than 70 years of experience, only one ex-prosecutor contacted had ever heard of a judge-appointed private prosecution for criminal contempt. That case, filed by an Alabama judge against another crusading plaintiffâs attorney, was ultimately dismissed." https://www.courthousenews.com/author/adam-klasfeld/
Dem Senators Markey and Whitehouse (himself an ex US attorney and State Attorney General) have also endeavored to get to the bottom of this. I would really like to read the reply. Hopefully there was one. Itâs been almost two years.
I have no doubt that a judge appointing private prosecution is rare. My question is how rare is it in cases where the local US attorney declines to prosecute criminal contempt. If private prosecutors are common when that happens, then I would consider it the norm. I donât know if it is the norm, but I am open to the possibility that it might be.
The most relevant SCOTUS case is probably Young v. United States ex rel. Vuitton et Fils. (Majority opinion by William Brennan.)
Although Federal Rule of Criminal Procedure 42(b) does not authorize the appointment of private attorneys, its reference to such appointments acknowledges the long-settled rule that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, which authority necessarily includes the ability to appoint a private attorney to prosecute the contempt. The contention that only the United States Attorneyâs Office may bring a contempt prosecution is unavailing, since the Judiciary must have an independent means to vindicate its own authority without dependence on another Branch to decide whether proceedings should be initiated.
All I can tell you is that everyone Iâve read is calling it highly unusual. Shrug.
From Young vs United States:
A private attorney appointed to prosecute a criminal contempt should be as disinterested as a public prosecutor, since the attorney is appointed solely to pursue the public interest in vindication of the courtâs authority.
So regardless of rarity the judge really shouldnât be enlisting a law firm that was practicing on the behalf of Chevron merely a year previous.
Iâm just asking how much of the unusualness is due to the non-prosecution decision and how much is due to the use of private attorneys. I am not convinced that the weirdness is mainly due to the latter. This could be a case where the correct and normal process for dealing with an unusual situation was implemented poorly.
I donât see appointing a private attorney to oversee a criminal contempt prosecution as inherently bad, although it was obviously done in an improper manner in this case.
Yeah I understand the distinction youâre making - I just canât find a specific answer. I do think itâs somewhat indicative, though, that all the various flavors of âunusualâ Iâve read seem to refer to Kaplanâs enlisting of a private prosecutor itself rather than focusing on the Stateâs refusal to prosecute. Obviously thatâs not explicit though.
I do think any reply Mauskopf gave to the Markey letter would be more illuminating on that front.