Amicus Brief of Professor Jennifer L. Mascott in Donziger v. United States, 22-274

Abstract

This brief contends that the Supreme Court should grant review of the split Second Circuit decision in Donziger v. United States to address and resolve several important separation of powers questions raised by the lower courts’ approval of a blending of core executive and judicial powers in a single office of special prosecutor. Fed. R. Crim. P. 42(a) does not properly create the office of special prosecutor "by Law" under the Constitution's Appointments Clause constraints, and the Second Circuit's decision establishes no constitutional textual or structural basis for concluding that a single prosecutor can be simultaneously supervised by both judicial and executive branch actors.