The Gorsuch-Menashi Doctrine

‘Never . . . never . . . never’ is the way John Adams put the rule against one branch of government doing the work of another.

Via Wikimedia Commons
Justice Neil Gorsuch at the Supreme Court on April 10, 2017. Via Wikimedia Commons

Constitutional cognoscenti will be keeping an eye out in coming seasons for the emergence of what the Sun intends to call the Gorsuch-Menashi Doctrine. That would be the idea that courts may not violate the principle of separated powers by appointing prosecutors to pursue a case, even where the executive branch has decided not to do so. It’s deciding a case, not prosecuting it, that is the job of the judiciary.

The principle was brushed aside last year in the Second Circuit, where Judge Steven Menashi issued one of those dissents that will be remembered for longer than the majority opinion. When review was sought at the Supreme Court, the Nine took a powder, refusing to hear the case. Only Justice Gorsuch, joined by Justice Kavanaugh, dissented. Justice Gorsuch encouraged all judges to study Judge Menashi’s dissent.

This doesn’t surprise us. Years ago Judge Menashi pulled an oar in the editorial galley of the Sun, where his brilliance quickly became clear and he headed off to law school, where he must have encountered the most famous articulation of separated powers ever inked — Article XXX of the Constitution of Massachusetts. It was written by John Adams, who dipped his quill in the gall of liberty, and it came out reading like this: 

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” Emphasis added in case any judges read this.

The case the Supreme Court decided not to hear involves one Steven Donziger. He disobeyed orders of a district court. The court referred him for prosecution by the Department of Justice. DOJ, using its lawful discretion, declined. The court turned around and, in a shocking breach, appointed three private attorneys to prosecute. They won a conviction. Donziger sued to overturn it. In the Second Circuit, he lost.

This is where Judge Menashi comes in. He would have vacated Donziger’s conviction. What happened to Donziger, he wrote, “is not how defendants are prosecuted in a system of separated powers.” Mr. Menashi’s opinion dissects the Constitution’s “appointments clause.” It says that the President shall appoint, among others, “Judges of the supreme Court, and all other Officers of the United States.”

The Constitution does allow Congress to “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Justice Gorsuch marks the limits of this: “Who really thinks that the President may choose law clerks for my colleagues, that we can pick White House staff for him, or that either he or we are entitled to select aides for the Speaker of the House?”

It’s only the president, though, who is given power to take care that the laws are faithfully executed. Judge Menashi derides a “split-the-baby” approach “under which the executive must have  the power to oversee a prosecution but the judiciary may decide to  initiate one.” That, Judge Menashi reckons, undermines the principle that the “entire ‘executive Power’ belongs to the President alone.”

This issue, in our view, lies at the bottom of much of the bitterness that has come into our politics these last two generations. It started with the way a special prosecutor was brought in against President Nixon. It festered during the Reagan years, when the Supreme Court, despite the Constitution, okayed an independent counsel. It nigh ruined George H.W. Bush’s and Bill Clinton’s presidencies.

So we like the way Justice Gorsuch parked this issue out there for the coming generation of jurists and dusted Judge Menashi with glory. “I can only hope,” the justice wrote, “that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case.” For, he said, “Our Constitution does not tolerate what happened here.”

The New York Sun

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