In a split decision, the U.S. Court of Appeals for the Second Circuit has upheld the criminal contempt-of-court conviction of Steven Donziger, rejecting his Appointments Clause and related arguments that had challenged a federal judge’s appointment of a special prosecutor in the case after Manhattan’s U.S. Attorney had declined to prosecute Donziger.

Two of the three judges on the Second Circuit panel that heard the appeal said that while ex-attorney Donziger and his legal team argued that a federal judge’s appointment of a special prosecutor “violated the Appointments Clause of the United States Constitution because … the special prosecutors are inferior officers who were not supervised by a principal officer,” it was clear that under statutory authority the U.S. Attorney indeed has the power to “conduct and to supervise all litigation involving the United States” and that “this authority includes supervising—and if necessary, removing—the special prosecutors.”

Steven Donziger sitting at his dining room table while under house arrest in his Manhattan apartment. Photo: Ryland West