Hofstra Law Review
Judicial appointment of private attorneys as special prosecutors has occurred and is permitted to occur in a variety of contexts other than when the executive branch is faced with a potential or actual conflict of interest. Until recently, the Second Circuit Court of Appeals and, of course, district courts within the Second Circuit, have interpreted Rule 42(b) of the Federal Rules of Criminal Procedure to permit judicial appointment of a private attorney to prosecute conduct allegedly violative of a court order as criminal contempt. Courts have been most active in appointing private attorneys as special prosecutors in cases involving counterfeit trademark products. This discussion will focus on three major areas of disagreement between the Court and Justice Scalia in Young v. U.S. ex rel Vuitton et Fils: (1) the scope of the contempt power, (2) the role of the judge in contempt proceedings, and (3) the Court's justification for its holding. At its core, the disagreement stems from the definition of judicial power embodied in article III of the Constitution. For Justice Scalia, the role of the prosecutor is inconsistent with the judge's role as a neutral adjudicator. He believes neutrality is the essence of the judicial function and, thus, judicial power. "The judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy. ' This includes the power to act as a "neutral adjudicator" but does not include the power to prosecute.
James A. Cohen,
Self-Love and the Judicial Power to Appoint a Special Prosecutor Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 Hofstra L. Rev. 23
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/273