Rule 42 Special Prosecutors: A Separation of Powers Frankenstein

That Is Part Judicial and Part Executive Yet All Vulnerable to Challenge

A dissent from the Supreme Court’s denial of certiorari in United States v. Donziger raised concerns with Fed. R. Crim. Proc. 42, which allows courts to appoint private attorneys as special prosecutors to handle criminal contempt cases. Andrew Boutros and Jay Schleppenbach discuss the constitutional separation of powers arguments that advocates can raise in defending against these prosecutions.