Based on the statute (i.e. if DOJ declines, the judge has to appoint a different prosecutor), I think the rareness is 100% due to the fact that DOJ will almost always prosecute for contempt. It would also be just bad tactics as you’re going to piss off judges and decline their recommendation.
Interesting article on the issue, suggests that rare for DOJ to decline to prosecute, but when DOJ does decline, judge should recuse himself since he appointed the prosecutor (doesn’t get into whether judge acted improperly in picking Donziger prosecutor). It’s from a conservative law professor so takes disfavorable view in general of Donziger.
Regardless of how rare of an occurrence appointment of a prosecutor is, it’s inexcusable that the attorneys were from the same firm that was representing one of the parties of the underlying suit. I can’t think of a set of circumstances that would make that arrangement ok.
If the lawyers don’t have a strong case, it might not matter how biased they are. I would be more concerned about how norms were violated in deciding which judge would preside over the criminal contempt trial.
But as long as it’s normal it’s fine? 3 years in confinement for a misdemeanor for either (as he claims) protecting privilege or (as they claim) not helping incriminate/investigate/prosecute himself?
It’d be fine if the process has been used to find truly neutral private attorneys to serve as prosecutors and if the normal procedure for assigning a judge to the trial had been used. I don’t have a problem with Rule 42, just how it was used.
