Young v. U.S. ex rel. Vuitton et Fils

481 U.S. 787 (1987)

Argued January 13, 1987; Decided May 26, 1987*

* Together with No. 85-6207, Klayminc v. United States ex rel. Vuitton et Fils S.A. et al., also on certiorari to the same court. Footnotes omitted.

BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which REHNQUIST, C.J., and MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined, and an opinion with respect to Part III-B, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 481 U. S. 814. SCALIA, J., filed an opinion concurring in the judgment, post, p. 481 U. S. 815. POWELL, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C.J., and O'CONNOR, J., joined,post, p. 481 U. S. 825. WHITE, J., filed a dissenting opinion, post, p. 481 U. S. 827.

JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, and an opinion with respect to Part III-B, in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join.

Petitioners in these cases were found guilty of criminal contempt by a jury, pursuant to 18 U.S.C. 401(3), for their [481 U. S. 790] violation of the District Court's injunction prohibiting infringement of respondent's trademark. They received sentences ranging from six months to five years. [Footnote 1] On appeal to the Court of Appeals for the Second Circuit, petitioners urged that the District Court erred in appointing respondent's attorneys, rather than a disinterested attorney, to prosecute the contempt. The Court of Appeals affirmed, 780 F.2d 179 (1985), and we granted certiorari, 477 U.S. 903 (1986). We now reverse, exercising our supervisory power, and hold that counsel for a party that is the beneficiary of a court order may not be appointed to undertake contempt prosecutions for alleged violations of that order.


The injunction that petitioners violated in these cases is a result of the settlement of a lawsuit brought in December, 1978, in the District Court for the Southern District of New York, by Louis Vuitton, S. A. a French leather goods manufacturer, against Sol Klayminc, his wife Sylvia, his son Barry (the Klaymincs), and their family-owned businesses, Karen Bags, Inc., Jade Handbag Co., Inc., and Jak Handbag, Inc. Vuitton alleged in its suit that the Klaymincs were manufacturing imitation Vuitton goods for sale and distribution. Vuitton's trademark was found valid in Vuitton et Fils S. A. v. J. Young Enterprises, Inc., 644 F.2d 769 (CA9 1981), and Vuitton and the Klaymincs then entered into a settlement agreement in July, 1982. Under this agreement, the Klaymincs agreed to pay Vuitton $100,000 in damages, and consented to the entry of a permanent injunction prohibiting them from, inter alia,

"manufacturing, producing, distributing, circulating, selling, offering for sale, advertising, promoting or displaying any product bearing any simulation, reproduction, counterfeit, copy, or colorable imitation" of [481 U. S. 791] Vuitton's registered trademark. App. to Pet. for Cert.195-A to 196-A.

In early 1983, Vuitton and other companies concerned with possible trademark infringement were contacted by a Florida investigation firm with a proposal to conduct an undercover "sting" operation. The firm was retained, and Melvin Weinberg and Gunner Askeland, two former Federal Bureau of Investigation agents, set out to pose as persons who were interested in purchasing counterfeit goods. Weinberg expressed this interest to petitioner Nathan Helfand, who then discussed with Klayminc and his wife the possibility that Weinberg and Askeland might invest in a Haitian factory devoted to the manufacture of counterfeit Vuitton and Gucci goods. Klayminc signed documents that described the nature of the factory operation and that provided an estimate of the cost of the counterfeited goods. In addition, Klayminc delivered some sample counterfeit Vuitton bags to Helfand for Weinberg and Askeland's inspection.

Four days after Helfand met with Klayminc, on March 31, 1983, Vuitton attorney J. Joseph Bainton requested that the District Court appoint him and his colleague Robert P. Devlin as special counsel to prosecute a criminal contempt action for violation of the injunction against infringing Vuitton's trademark. App. 18. Bainton's affidavit in support of this request recounted the developments with Helfand and Klayminc and pointed out that he and Devlin previously had been appointed by the court to prosecute Sol Klayminc for contempt of an earlier preliminary injunction in the Vuitton lawsuit. Bainton also indicated that the next step of the "sting" was to be a meeting among Sol and Barry Klayminc, Weinberg, and Askeland, at which Sol was to deliver 25 counterfeit Vuitton handbags. Bainton sought permission to conduct and videotape this meeting, and to continue to engage in undercover investigative activity.

The court responded to Bainton on the day of this request. It found probable cause to believe that petitioners were engaged [481 U. S. 792] in conduct contumacious of the court's injunctive order, and appointed Bainton and Devlin to represent the United States in the investigation and prosecution of such activity, as proposed in Bainton's affidavit. Id. at 27. A week after Bainton's appointment, on April 6, the court suggested that Bainton inform the United States Attorney's Office of his appointment and the impending investigation. Bainton did so, offering to make available any tape recordings or other evidence, but the Chief of the Criminal Division of that Office expressed no interest beyond wishing Bainton good luck.

Over the course of the next month, more than 100 audio and video tapes were made of meetings and telephone conversations between petitioners and investigators. On the basis of this evidence, Bainton requested, and the District Court signed, an order on April 26 directing petitioners to show cause why they and other parties should not be cited for contempt for either violating or aiding and abetting the violation of the court's July, 1982, permanent injunction. App. to Pet. for Cert. 205-A. Petitioners' pretrial motions opposing the order to show cause and the appointment of Bainton and Devlin as special prosecutors were denied, United States ex rel. Vuitton et Fils S. A. v. Karen Bags, Inc., 592 F.Supp. 734 (SDNY 1984), and two of the defendants subsequently entered guilty pleas. Sol Klayminc ultimately was convicted, following a jury trial, of criminal contempt under 18 U.S.C. 401(3), and the other petitioners were convicted of aiding and abetting that contempt. The trial court denied their post-trial motions. United States ex rel. Vuitton et Fils S. A. v. Karen Bags, Inc., 602 F.Supp. 1052 (SDNY 1985).

[481 U. S. 793] On appeal to the Court of Appeals for the Second Circuit, petitioners argued, inter alia, that the appointment of Bainton and Devlin as special prosecutors violated their right to be prosecuted only by an impartial prosecutor. The court rejected their contention, 780 F.2d 179 (1985), citing its decision in Musidor, B. V. v. Great American Screen, 658 F.2d 60 (1981), cert. denied, 455 U.S. 944 (1982). It suggested that an interested attorney will often be the only source of information about contempts occurring outside the court's presence, 780 F.2d at 183, and stated that the supervision of contempt prosecutions by the judge is generally sufficient to prevent the "danger that the special prosecutor will use the threat of prosecution as a bargaining chip in civil negotiations. . . .Id. at 184. Furthermore, the court stated that the authority to prosecute encompasses the authority to engage in necessary investigative activity such as the "sting" conducted in this case. Id. at 184-185. The Court of Appeals therefore affirmed petitioners' contempt convictions.



Petitioners first contend that the District Court lacked authority to appoint any private attorney to prosecute the contempt action against them, and that, as a result, only the United States Attorney's Office could have permissibly brought such a prosecution. We disagree. While it is true that Federal Rule of Criminal Procedure 42(b) does not provide authorization for the appointment of a private attorney, it is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.

[481 U. S. 794] By its terms, Rule 42(b) speaks only to the procedure for providing notice of criminal contempt. The court is required to "state the essential facts constituting the criminal contempt charged and describe it as such." This notice must be given by the judge in open court,

"or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest."

The Rule's reference to the appointment of a private attorney to submit a show cause order assumes a preexisting practiceof private prosecution of contempts, but does not itself purport to serve as authorization for that practice. Rule 42(b) simply requires that, when a private prosecutor is appointed, sufficient notice must be provided that the contempt proceeding is criminal in nature.

[481 U. S. 795] The Rule's assumption that private attorneys may be used to prosecute contempt actions reflects the longstanding acknowledgment that the initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function. As this Court declared in Michaelson v. United States ex rel. Chicago, St. P., M., & O. R. Co., 266 U. S. 42(1924):

"That the power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law. It is essential to the administration of justice. The courts of the United States, when called into existence and vested with jurisdiction over any subject, at once became possessed of the power."

Id. at 266 U. S. 65-66.

[481 U. S. 796] The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.

"If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls 'the judicial power of the United States' would be a mere mockery." Gompers v. Bucks Stove & Range Co., 221 U. S. 418221 U. S. 450 (1911).

As a result, "there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience." Ibid. Courts cannot be at the mercy of another Branch in deciding whether such proceedings should be initiated. The ability to appoint a private attorney to prosecute a contempt action satisfies the need for an independent means of self-protection, without which courts would be "mere boards of arbitration whose judgments and decrees would be only advisory." Ibid. 8 [481 U. S. 797]


Petitioners contend that the ability of courts to initiate contempt prosecutions is limited to the summary punishment of in-court contempts that interfere with the judicial process. They argue that out-of-court contempts, which require prosecution by a party other than the court, are essentially conventional crimes, prosecution of which may be initiated only by the Executive Branch.

[481 U. S. 798] The underlying concern that gave rise to the contempt power was not, however, merely the disruption of court proceedings. Rather, it was disobedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial. See Bessette v. W. B. Conkey Co., 194 U. S. 324194 U. S. 333 (1904) (contempt power "has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary course of its duties, and to enable it to enforce its judgments and orders necessary to the due administration of law and the protection of the rights of suitors") (emphasis added); Ex parte Robinson, 19 Wall. 505, 86 U. S. 510 (1874) (existence of contempt power "essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice") (emphasis added); Anderson v. Dunn, 6 Wheat. 204, 19 U. S. 227 (1821) (courts by their creation vested with power "to impose silence, respect, and decorum in their presence, and submission to their lawful mandates") (emphasis added).


The distinction between in-court and out-of-court contempts has been drawn not to define when a court has or has not the authority to initiate prosecution for contempt, but for the purpose of prescribing what procedures must attend the exercise of that authority. . . .

* * *

Petitioners' assertion that the District Court lacked authority to appoint a private attorney to prosecute the contempt action in these cases is thus without merit. While contempt proceedings are sufficiently criminal in nature to warrant the imposition of many procedural protections, their fundamental purpose is to preserve respect for the judicial system itself. As a result, courts have long had, and must [481 U. S. 801] continue to have, the authority to appoint private attorneys to initiate such proceedings when the need arises.

While a court has the authority to initiate a prosecution for criminal contempt, its exercise of that authority must be restrained by the principle that "only [t]he least possible power adequate to the end proposed' should be used in contempt cases." United States v. Wilson, 421 U. S. 309421 U. S. 319 (1975) (quoting Anderson v. Dunn, 6 Wheat. at 231). We have suggested, for instance, that, when confronted with a witness who refuses to testify, a trial judge should first consider the feasibility of prompting testimony through the imposition of civil contempt, utilizing criminal sanctions only if the civil remedy is deemed inadequate. Shillitani v. United States, 384 U. S. 364384 U. S. 371, n. 9 (1966).

* * *

In this case, the District Court did not first refer the case to the United States Attorney's Office before the appointment of Bainton and Devlin as special prosecutors. We need not address the ramifications of that failure, however. Even if a referral had been made, we hold, in the exercise of our supervisory power, that the court erred in appointing as prosecutors counsel for an interested party in the underlying civil litigation.

* *




In Berger v. United States295 U.S. 78, 88 (1935), this Court declared: [481 U.S. 787, 803]  

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer."

This distinctive role of the prosecutor is expressed in Ethical Consideration (EC) 7-13 of Canon 7 of the American Bar Association (ABA) Model Code of Professional Responsibility (1982): "The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict."

Because of this unique responsibility, federal prosecutors are prohibited from representing the Government in any matter in which they, their family, or their business associates have any interest. 18 U.S.C. 208(a). Furthermore, the Justice Department has applied to its attorneys the ABA Model Code of Professional Responsibility, 28 CFR [481 U.S. 787, 804]   45.735-1(b) (1986). which contains numerous provisions relating to conflicts of interest. The concern that representation of other clients may compromise the prosecutor's pursuit of the Government's interest rests on recognition that a prosecutor would owe an ethical duty to those other clients. "Indeed, it is the highest claim on the most noble advocate which causes the problem - fidelity, unquestioned, continuing fidelity to the client." Brotherhood of Locomotive Firemen & Enginemen v. United States, 411 F.2d. 312, 319 (CA5 1969).

Private attorneys appointed to prosecute a criminal contempt action represent the United States, not the party that is the beneficiary of the court order allegedly violated. As we said in Gompers, criminal contempt proceedings arising out of civil litigation "are between the public and the defendant, and are not a part of the original cause." 221 U.S., at 445 . The prosecutor is appointed solely to pursue the public interest in vindication of the court's authority. A private attorney appointed to prosecute a criminal contempt therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution. [481 U.S. 787, 805] 

* *

The requirement of a disinterested prosecutor is consistent with our recognition that prosecutors may not necessarily be held to as stringent a standard of disinterest as judges. "In an adversary system, [prosecutors] are necessarily permitted to be zealous in their enforcement of the law," Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980). We have thus declined to find a conflict of interest in situations where the potential for conflict on the part of a judge might have been intolerable. See id., at 250-252 (fact that sums collected as civil penalties returned to agency to defray administrative costs presented too remote a potential for conflict in agency enforcement efforts). Ordinarily we can only speculate whether other interests are likely to influence an enforcement officer, and it is this speculation that is informed by appreciation of the prosecutor's role. In a case where a prosecutor represents an interested party, however, the ethics of the legal profession require that an interest other than the Government's be taken into account. Given this inherent conflict in roles, there is no need to speculate whether the prosecutor will be subject to extraneous influence. [481 U.S. 787, 808]  

As we said in Bloom, "In modern times, procedures in criminal contempt cases have come to mirror those used in ordinary criminal cases." 391 U.S., at 207 . The requirement of a disinterested prosecutor is consistent with that trend, since "[a] scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision." 

The use of this Court's supervisory authority has played a prominent role in ensuring that contempt proceedings are conducted in a manner consistent with basic notions of fairness. See, e. g., Cheff, 384 U.S., at 380 (requiring jury trial for imposition of contempt sentences greater than six months); Yates v. United States,356 U.S. 363, 366 -367 (1958) (reducing contempt sentence in light of miscalculation [481 U.S. 787, 809]   of number of offenses committed); Offutt v. United States348 U.S. 11, 13 , 17-18 (1954) (contempt conviction reversed in case in which judge involved in personal conflict with contemner). The exercise of supervisory authority is especially appropriate in the determination of the procedures to be employed by courts to enforce their orders, a subject that directly concerns the functioning of the Judiciary. We rely today on that authority to hold that counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order. 

* * *


[Footnote 8] JUSTICE SCALIA's concurrence suggests that our precedents regarding a court's inherent contempt authority have lost their force because of our decision in Bloom v. Illinois, 391 U. S. 194 (1968). Post at 481 U. S. 823-824. The argument is that, since Bloom rejected the holding in In re Debs, 158 U. S. 564 (1895), that courts have inherent power summarily to punish serious contempts, and since the cases between Bloom and Debs assumed the existence of this summary power, these precedents cannot provide guidance for a court's authority with respect to contempt of court. These precedents, however, both acknowledge the inherent power of a court to institute contempt proceedings, and assume that, in such proceedings, the court may summarily determine guilt with respect to serious criminal contempts. Bloom held that the second assumption was incorrect, but did nothing to undermine the first. Bloom's rejection of arguments regarding the need to vindicate judicial authority relates solely to exercise of the summary contempt power. See 391 U.S. at 311 U. S. 208 ("[W]hen serious punishment for contempt is contemplated, rejecting a demand for jury trial cannot be squared with . . . the desirability of vindicating the authority of the court"); ibid. ("We place little credence in the notion that the independence of the judiciary hangs on the power to try contempts summarily"). That case therefore cannot justify ignoring our consistent pronouncements on the inherent authority of a court to institute contempt proceedings.

Nor is it the case that, "as a practical matter, the impairment of judicial power produced by requiring the Executive to prosecute contempts is no more substantial than the impairment produced by requiring a jury." Post at 481 U. S. 824.

The concern about impairment of a court's authority is based on the fear that an alleged contemnor will consider himself or herself beyond the reach of the law. As we said in Gompers, supra:

"If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the 'judicial power of the United States' would be a mere mocker."

221 U.S. at 221 U. S. 450. The need to vindicate a court's authority is thus satisfied by ensuring that an alleged contemner will have to account for his or her behavior in a legal proceeding, regardless of whether the party is ultimately convicted or acquitted. A Court's ability to institute a contempt proceeding is therefore essential to the

[Footnote 10] JUSTICE SCALIA's concurrence suggests that the logic of resting a court's ability to institute a contempt proceeding on the need to vindicate the court's authority would support "an inherent power on the part of Congress to prosecute and punish disobedience of its laws." Post at 481 U. S. 821. A court's authority is inherently limited, however, by the nature of the judicial power, for the court has jurisdiction in a contempt proceeding only over those particular persons whose legal obligations result from their earlier participation in proceedings before the court. By contrast, the congressional prosecutorial power the concurrence hypothesizes would admit of no such limit; the parties potentially subject to such power would include the entire population. Acknowledging the limited authority of courts to appoint contempt prosecutors thus provides no principle that can be wielded to eradicate fundamental separation of powers boundaries.

[Footnote 12] Bainton did send the following letter to the United States Attorney's Office one week after his appointment as special prosecutor:

"Dear Mr. Pedowitz:"

"At the suggestion of Judge Brieant, I am bringing to your attention an order signed by Judge Lasker in Judge Brieant's absence in the above-entitled criminal contempt proceedings, together with an affidavit of mine submitted in support of that order."

"The criminally contumacious events predicted in my affidavit have come to pass. Should anyone from your office have any interest in this matter, I am obviously willing to make the tape recordings and other evidence available for your review in a manner which will not compromise its chain of custody."

"Very truly yours,"

"J. Joseph Bainton"

* * *

JUSTICE SCALIA, concurring in the judgment.

I agree with the Court that the District Court's appointment of J. Joseph Bainton and Robert P. Devlin as special counsel to prosecute petitioners for contempt of an injunction earlier issued by that court was invalid, and that that action requires reversal of petitioners' convictions. In my view, however, those appointments were defective because of a failing more fundamental than that relied upon by the Court. Prosecution of individuals who disregard court orders (except orders necessary to protect the courts' ability to function) is not an exercise of "[t]he judicial power of the United States," U.S.Const., Art. III, 1, 2. Since that is the only grant of power that has been advanced as authorizing these appointments, they were void. And since we cannot know whether petitioners would have been prosecuted had the matter been referred to a proper prosecuting authority, the convictions are likewise void.


With the possible exception of the power to appoint inferior federal officers, which is irrelevant to the present cases, [Footnote 2/1] [481 U. S. 816] the only power the Constitution permits to be vested in federal courts is "[t]he judicial power of the United States." Art. III, 1. That is accordingly the only kind of power that federal judges may exercise by virtue of their Article III commissions.Muskrat v. United States, 219 U. S. 346219 U. S. 354-356, (1911); United States v. Ferreira, 13 How. 40 (1852).

The judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy. See Art. III, 2. That includes the power to serve as a neutral adjudicator in a criminal case, but does not include the power to seek out law violators in order to punish them -- which would be quite incompatible with the task of neutral adjudication. It is accordingly well established that the judicial power does not generally include the power to prosecute crimes. See United States v. Cox, 342 F.2d 167 (CA5) (en banc), cert. denied, 381 U.S. 935 (1965), and authorities cited therein; 342 F.2d at 182 (Brown, J., concurring); id. at 185 (Wisdom, J., concurring); see generally United States v. Thompson, 251 U. S. 407251 U. S. 413-417 (1920). Rather, since the prosecution of law violators is part of the implementation of the laws, it is -- at least to the extent that it is publicly exercised [Footnote 2/2] -- executive power, vested by the Constitution in the [481 U. S. 817] President. Art. II, 2, cl. 1. See Heckler v. Cheney, 470 U. S. 821470 U. S. 832 (1985); Buckley v. Valeo, 424 U. S. 1424 U. S. 138 (1976).

* * *

Even as a purely analytic proposition, the Court's thesis is faulty, because it proves too much. If the courts must be able to investigate and prosecute contempt of their judgments, why must they not also be able to arrest and punish those whom they have adjudicated to be in contempt? Surely the Ex ecutive's refusal to enforce a judgment of contempt would impair the efficacy of the court's acts at least as much as its failure to investigate and prosecute a contempt. Yet no one has ever supposed that the Judiciary has an inherent power to arrest and incarcerate. [481 U. S. 819]


The Court appeals to a "longstanding acknowledgment that the initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function."

Ante at 481 U. S. 795. Except, however, for a line of cases beginning in 1895 with In re Debs, 158 U. S. 564, whose holding and rationale we have since repudiated, no holding of this Court has ever found inherent judicial power to punish those violating court judgments with contempt, much less to appoint officers to prosecute such contempts. Our first reference to the special status of the federal courts' contempt powers appeared in United States v. Hudson, 7 Cranch 32 (1812), where the question presented was whether circuit courts had the power to decide common law criminal cases. Congress had not conferred such power, but the prosecution argued that it was part of the National Government's inherent power to preserve its own existence. Id. at 11 U. S. 33-34. The Court ruled that such an argument could establish, at most, that Congress had inherent power to pass criminal laws, not that the federal courts had inherent power without legislation to adjudge common law crimes. At the end of its discussion, the Court noted:

"Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt -- imprison for contumacy -- inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers."

Id. at 11 U. S. 34. Thus, the holding of Hudson was against the existence of broad inherent powers in the federal courts. Its discussion [481 U. S. 820] recognized as inherent only those powers "necessary to the exercise of all others," that is, necessary to permit the courts to function, among which it included the contempt power when used to prevent interference with the conduct of judicial business. It made no mention of the enforcement of judgments, much less of an investigative or prosecutory authority.

Nine years later, in Anderson v. Dunn, 6 Wheat. 204, 19 U. S. 227 (1821), the Court reiterated its view that the contempt power was an inherent component of the judicial power. That case presented an issue more closely related to the questions of the source and scope of the federal courts' contempt power, although still not directly on point: whether the House of Representatives could direct its Sergeant at Arms to seek out a person who had disrupted its proceedings, bring him before the House to be tried for contempt, and hold him in custody until completion of the proceedings. The Court noted that "there is no power given by the constitution to either House to punish for contempts, except when committed by their own members," id. at 19 U. S. 225, and that "if this power . . . is to be asserted on the plea of necessity, the ground is too broad, and the result too indefinite; . . . the executive, and every coordinate, and even subordinate, branch of government, may resort to the same justification, and the whole assume to themselves, in the exercise of this power, the most tyrannical licentiousness."

Id. at 19 U. S. 228. Nevertheless, the Court upheld the House's action, concluding that any other course "leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy may meditate against it." Ibid.

It was in the course of recognizing this limited power of self-defense in the House that the Court pronounced the dictum cited in today's opinion that "[c]ourts of justice are universally [481 U. S. 821] acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution." Id. at 19 U. S. 227.


[Footnote 2/1] Article II, 2, cl. 2, provides that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, . . . in the Courts of Law." (Emphasis added.) There was some suggestion in the Solicitor General's brief that the appointments in the present cases might be authorized by that provision. Brief for United States as Amicus Curiae 17-19, and n. 14. The contention was abandoned at argument, however, Tr. of Oral Arg. 26-28, and properly so, since regardless of whether Congress could "by law" authorize judicial appointment of an officer of this sort -- a question we need not decide here -- it has in fact not done so. The closest thing to a law cited by the Government was Federal Rule of Criminal Procedure 42(b), which, as the Court notes, ante at 481 U. S. 794-796, and n. 6, does not purport to bestow appointment, power but rather assumes its preexistence. In any event, the Rule could not confer Article II appointment authority, since it is a Rule of court, rather than an enactment of Congress. See 18 U.S.C. 3772 (1982 ed. and Supp. III).

[Footnote 2/2] In order to resolve the present cases, it is only necessary to decide that the power to prosecute is not part of the "judicial power" conferred on Article III courts. It is not necessary to decide whether the Constitution's vesting of the executive power in the President, Art. II, 1, cl. 1, forbids Congress from conferring prosecutory authority on private persons. At the time of the Constitution, there existed in England a longstanding custom of private prosecution, see Comment, The Outmoded Concept of Private Prosecution, 25 Am.U.L.Rev. 754, 758 (1976). I am unaware, however, of any private prosecution of federal crimes. The Judiciary Act of 1789 provided for the appointment in each judicial district of

"a meet person learned in the law to act as attorney for the United States . . . whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States."

35, 1 Stat. 92; see generally Comment, 25 Am.U.L.Rev., supra, at 762-764.

JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, concurring in part and dissenting in part.

In this case, the District Court appointed counsel for a party in a civil suit as a prosecutor in a related criminal contempt proceeding. The Court of Appeals for the Second Circuit found that the District Court did not abuse its discretion in making such an appointment. The Court today reaches a contrary conclusion. I agree that the District Court abused [481 U. S. 826] its discretion in this case, and that, as a general matter, courts should not appoint interested private lawyers to prosecute charges of criminal contempt. But while I agree with the underlying rationale of the Court's opinion, I do not believe that this Court's precedents call for per se reversal. I therefore cannot join the Court's judgment.

* * *

While the potential for prosecutorial impropriety may justify the conclusion that such appointments are inappropriate, it does not justify invalidation of the conviction and sentence in this case. Even where constitutional errors are found to have occurred, this Court has found harmless error analysis to be appropriate. Chapman v. California, 386 U. S. 18 (1967). As the Court recently noted:

"[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless error analysis." Rose v. Clark, 478 U. S. 570478 U. S. 579 (1986).

Here, the error is not of constitutional dimension. Moreover, the defendants had counsel and were convicted of criminal [481 U. S. 827] contempt by an impartial jury. The Court of Appeals found "[no] reason to believe" that the private prosecutor in this case acted unethically. 780 F.2d 179, 185 (CA2 1985). The court also found the evidence offered at trial "ample" to support the convictions. Ibid. These findings strongly imply that the error of appointing the private counsel in this case to prosecute the contempt proceeding was harmless.

Although this Court has the authority to review a record to evaluate a harmless error claim, United States v. Hasting, 461 U. S. 499461 U. S. 510 (1983), I share the Court's concern that the effect of conflicting interests on the integrity of prosecutorial decisions may be subtle. Accordingly, I would remand these cases to the Court of Appeals -- in light of our decision today -- to determine whether the error of appointing the private attorney to prosecute the contempt proceeding at issue was harmless.

JUSTICE WHITE, dissenting.

I agree with the Court that, as a general rule, contempt cases such as this should in the first instance be referred to the United States Attorney, and that a district court's well-established authority to appoint private counsel to prosecute should be exercised only after that official declines to prosecute. I would also prefer that district courts not appoint the attorney for an interested party to prosecute a contempt case such as this. But as I understand Rule 42, it was intended to embrace the prior practice and to authorize, but not to require, the appointment of attorneys for interested parties. I would leave amendment of the Rule to the rulemaking process. I agree with the Court of Appeals that there was no error, constitutional or otherwise, in the appointments made in this action, and that petitioners were not denied due process of law by being tried and convicted of contempt. Because I discern no ground for concluding that petitioners did not receive a fair trial, I would affirm the Court of Appeals.