Whether Fed. R. Crim. P. 42(a)(2) authorizes judicial appointments of inferior executive officers

QUESTIONS PRESENTED In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), this Court endorsed the practice of appointing private lawyers to try criminal contempts. Young assumed that such private special prosecutors exercise judicial, not executive, power. In 2002, Fed. R. Crim. P. 42 was amended to reflect that understanding, authorizing courts to appoint private lawyers to try criminal contempts once an “attorney for the government” has declined to do so. When the U.S. Attorney declined to try petitioner for criminal contempt, the district court appointed private lawyers to prosecute him—relying on both Rule 42 and its “inherent” judicial power. On appeal, the Second Circuit concluded that such private special prosecutors are inferior executive officers whose interbranch appointments must comport with the Appointments Clause—including the requirements that Congress authorize the appointments and that the officers be subject to principal-officer supervision. Over Judge Menashi’s dissent, however, the panel majority deemed that Congress’s failure to block the amendment to Rule 42 was sufficient to authorize such appointments, and that the Attorney General’s facial authority to direct federal prosecutions under 28 U.S.C. § 516 provided sufficient supervision even of lawyers who were appointed to override the executive’s declination. The questions presented are: 1. Whether Fed. R. Crim. P. 42(a)(2) authorizes judicial appointments of inferior executive officers? 2. If so, whether such appointments violate the Appointments Clause?