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?

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