« A SCOTUS week full of federal criminal case oral arguments | Main | Continuing criticism for Prez Biden's Justice Department for attending to the rule of (capital) law »

March 27, 2023

Justice Gorsuch (joined by Justice Kavanaugh) dissents from denial of cert in criminal contempt case

The Supeme Court's new order list this morning has only one cert grant in a civil case, but it concludes with a notable five-page dissent from the denial of certiorari in Donzinger v. US, No. 22–274.  Here is part of the factual backstory as explained in the dissent authored by Justice Gorsuch and joined by Justice Kavanaugh involving prosecution of a lawyer for criminal contempt:

When Mr. Donziger failed to comply fully with the court’s orders, it held him in criminal contempt and referred the matter to the U. S. Attorney’s Office for prosecution.  See 38 F. 4th 290, 295 (CA2 2022).  After some deliberation, however, the U.S. Attorney “‘respectfully declined’” to take up the case. Ibid. (alteration omitted).

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor’s office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Ibid.  Throughout these proceedings and on appeal, Mr. Donziger objected.  He argued that the district court had no lawful authority to override the Executive Branch’s nonprosecution decision and that our Constitution’s separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.  Despite his arguments, the Second Circuit affirmed Mr. Donziger’s conviction. Id., at 306. Judge Menashi dissented. Id., at 306–315.

Justice Gorsuch goes on to explain the shaky precedents and laws cited to support the unusual process for convicting the defendant here.  And he concludes the dissent this way:

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.  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.  In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not.  With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.  Our Constitution does not tolerate what happened here.

March 27, 2023 at 10:18 AM | Permalink


The Supreme Court should have taken this one. When there are credible allegations of judges acting in an ultra vires manner, the Supreme Court needs to deal with it.

Posted by: federalist | Mar 27, 2023 12:53:36 PM

I agree with Gorsuch, Steve Menashi and federalist. The district court's actions are inconsistent with separation of powers.

Posted by: Bill Otis | Mar 27, 2023 2:17:11 PM

Over many years, I have found that many state and federal Judges fail to grasp the limits of their contempt powers and authority. My own cousin, former (and now retired) Kentucky Family Court Judge Tamra Gormley held a husband in a domestic violence order case in summary direct criminal contempt of court for speaking to his wife out in the hallway, beyond the Judge's sight or hearing. The Judge was advised about the hallway conversation by her bailiff and did not hear it or see it herself. The husband was pro se. She asked him questions about what he had done in the hallway without reading him his Miranda rights and advising him that he did not have to answer her questions, but if he did answer them, she might use the answers to hold him in criminal contempt. After he responded to her questions, she had him placed in handcuffs in the Courtroom and taken to jail for contempt. The problem was that she lacked the legal power and authority to hold him in summary criminal contempt, because what had transpired was outside her sight and hearing, in the hallway. Instead, she should have set the matter down for a hearing on a later date, after the defendant had an opportunity to retain counsel to defend him (or appoint a public defender), since "criminal contempt" is a criminal case, to which the Sixth Amendment provides a right to be represented by counsel. On appeal, Judge Gormley was reversed by the Georgia Court of Appeals. The Kentucky Judicial Conduct Commission sanctioned her with a 45 day suspension without pay and a public reprimand. See, Honorable Tamra Gormley, Judge vs. Judicial Conduct Commission, Appeal Nos. 2009-SC-0736 and 2010-SC-0010 (Ky. January 20, 2011). I use this example to remind readers that as members of the Judicial Branch of Government, Judges have the inherent right, under appropriate circumstances (supervisory powers), to hold people in direct criminal contempt of court for events that occur in their presence in the Courtroom. On the other hand, indirect criminal contempt applies to events that occur outside the presence of the Court, which are subject to the right of the Executive Branch prosecutors to decide whether or not to seek an indictment. It seems unprecedented for a Federal Judge to set up his own private prosecutors, after the U. S. Attorney's Office has declined to seek an indictment and prosecute for this kind of contempt. The Supreme Court should have taken this cert. Petition and written a clear opinion spelling out the distinctions about the criminal contempt pwoers of Federal Judges.

Posted by: Jim Gormley | Mar 27, 2023 2:23:51 PM

Should say reversed by the Kentucky Court of Appeals.

Posted by: Jim Gormley | Mar 27, 2023 2:25:32 PM

I would note that my state has a similar rule to the one at issue here.

Direct criminal contempt (i.e in sight or hearing of judge), summary proceeding.

Indirect criminal contempt -- local prosecutor or prosecutor appointed by the court.

I assume a lot of states have rules that mirror the federal rules.

Posted by: tmm | Mar 27, 2023 5:10:08 PM

In 1908, Hamilton County Sheriff Joseph Shipp (Chattanooga, Tn.) was tried by the U.S. Superme Court (although the trial was actually held in Chattanooga by order of the USSC). The USSC ordered the trial to determine the Sheriff's culpability in regards to his contempt of court conviction. Shipp had been found in contempt by the federal district court and appealed to the USSC. The trial was then ordered by the higher court.

In a ruling by Justice Oliver Wendell Holmes, Jr. ordering the trial, the justice stated, in part: "This court (the USSC) is preeminent as speaking the last word for the judicial power.....while the inferior Federal courts look to Congress for their actual being, function and jurisdiction" In other words, only the USSC may convene a trial, while the 'inferior' courts must seek such power/authorization from Congress.

There is an excellent book chronicling this case (which stemmed from a lynching of a young black man in Chattanooga), entitled "Contempt of Court" (1999) by Mark Curriden and Leroy Phillips, Jr. Highly recommended.

Posted by: SG | Mar 27, 2023 7:20:42 PM

S.G., you might find it interesting that an attempt to lynch a black World War I veteran, who had killed a 10-year old white child, in Lexington, Kentucky in 1920 went the opposite direction from the case you mention. Will Lockett was caught and accused on killing 10-year old Geneva Hardman on February 4,1920. A lynch mob wanted to kill Lockett before he could have a trial, but the Circuit Courthouse and jail in Lexington were protected by National Guardsmen who had been sent by the Governor of Kentucky. On February 9, 1920, the lynch mob surged forward and some pistol shots were allegedly fired at the National Guardsmen, who returned fire (perhaps even with a machine gun!). Six men were killed and 20 were wounded. Two policemen and a soldier were also seriously wounded. The Governor requested Federal help, and 1,200 Army soldiers came to Lexington aboard special trains, carrying tanks and machine guns. An Army General placed Lexington under Marshall Law for 2 weeks. Will Lockett confessed to having previously murdered 2 women in Indiana and a woman in Louisville, Kentucky (where he had enlisted in the Army during World War I). In one of the shortest capital court proceedings in history, in February 2020, Will Lockett pleaded guilty to having murdered 10-yeqar old Geneva Hardman. A jury was empaneled to select and recommend a sentence, as required by the Kentucky Constitution. The jury heard brief evidence and recommended the death penalty. The Judge sentenced Will Lockett to death. The Court proceedings, from guilty plea to death penalty sentencing (including picking the jury!) allegedly took only 20 to 30 minutes. No appeal was made, because the defendant had pleaded guilty. Lockett was executed in the electric chair at the Kentucky State Penitentiary 30 days after being sentenced.

Also, the last public hanging in America occurred in August 1936 in Owensboro, Kentucky. Public executions were on their way out in America. The Sheriff of the county where the black defendant was convicted of raping a white woman refused to carry out the death sentence. The female sheriff of Davies County wrote the Governor and offered to carry out the sentence if he would send her the prisoner, which he did. 20,000 people turned out to watch the hanging. In 1936, it was unusual to elect a woman county Sheriff. The female Sheriff of Davies county was elected to the position after her husband, who had held the job for 30 years, died in office. The voters elected his widow to become the new Sheriff.

Posted by: Jim Gormley | Mar 28, 2023 12:04:05 AM


Thanks for that info. Our American history is replete with cruelty, racism and injustice. It would be a damn shame if we, as a society, allowed our government representatives to prevent these truths from being taught to our children.

Posted by: SG | Mar 28, 2023 3:29:41 AM

Speaking of out of control courts--Judge Boasberg, the same 'rat hack judge who swallowed the "I thought I could doctor emails because they were mistaken and present them to a court" mitigation defense (which was BS--Clinesmith knew what he was doing) is the same judge ordering Mike Pence to testify. Mike Pence is too much of a wuss to call this judge out. What Pence should say: "It is no surprise that this Obama judge--the same one that let a DOJ lawyer doctor documents filed with a court of law to get off scot free--is issuing this unprecedented order in the service of partisan political ends. Chief Justice Roberts, you warranted to the American people that there was no such thing as an Obama judge, Democratic or Republican judge--Boasberg has made you a liar.'

Posted by: federalist | Mar 28, 2023 2:36:16 PM

SG, It would be a damn shame if we, as a society, allowed our government representatives to allow these facts to be used to make children feel like they are responsible for these outrages.

There, I fixed it for you.

Posted by: federalist | Mar 28, 2023 2:38:38 PM

Mr. Federalist

And your solution is what? It seems to me that many participants of this blog are keen on offering their observations and analysis, yet seldom couple that with a workable solution. Are you, Mr. Federalist, suggesting these historical facts should be what? White-washed?

Posted by: SG | Mar 28, 2023 9:00:04 PM

SG --

My solution is that we should teach our children what my parents taught me -- that you are fully responsible for what you do, but you are not responsible for what other people did that you could not affect.

Posted by: Bill Otis | Mar 28, 2023 10:35:35 PM


Nice try. ‘Changing the subject’ (a ploy often used by lawyers On Both Sides) may work in front of a jury but not with me today. Your answer is wholly “unresponsive”. If you noticed, I had asked Mr. Federalist how he would present the historical facts I had outlined in my earlier post. “Taking responsibility”, while thought provoking, clearly fails to address the issue. Perhaps Mr. Federalist would like to give it a try.

Posted by: SG | Mar 29, 2023 1:56:49 AM

I thought I did answer your point--by fixing what you had to say. You seem to imply that I think that historical facts ought not be taught. Nothing can be further from the truth. What I oppose is (a) propagandizing history and (b) using history to impose ideology on children. A 10 year old white child is not tainted by any of these historical facts any more than a 10 year Turkish child is responsible for the Armenian genocide. Just recently, in Springfield, Ohio, a group of black kids bullied white kids into kneeling and reciting "Black lives matter." Wonder where they got the idea to do that?

Posted by: federalist | Mar 29, 2023 8:43:17 AM

Compare the result in this Donzinger criminal contempt matter at the U.S. Supreme Court with the result in United States v. Humberto Alvarez-Machain, 504 U.S. 655, 659-670 (1992), where the Supreme Court defied its own precedents and approved the kidnapped from Mexico of the physician who kept DEA Agent Kiki Camerana alive and screaming during 2 days of torture, before he was killed. Ironically, where Dr. Alvarez-Machain was tried in Los Angeles, the District Judge granted him a directed verdict of acquittal, because the witnesses necessary to prove the Government's case could not be subpoenaed to come from Mexico to Los Angeles to testify. Later, Dr. Alvarez-Machain pursued a Federal civil rights case against the Government agents who had arranged his kidnapping in Mexico. Although he prevailed in that civil rights case, the he was awarded a nominal sum of damages, about $1,200 or $1,500. The point in both cases is that no man is above Federal criminal laws.

Posted by: Jim Gormley | Mar 29, 2023 11:48:07 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB