The judicial branch’s power to appoint prosecutors is clearly established in cases involving contempt of court, argues Peter Shane, a professor of constitutional law at Ohio State University. He cites Rule 42 of the Federal Rules of Criminal Procedure, which specifies that in contempt cases, if the government refuses to prosecute, “the court must appoint another attorney to prosecute the contempt.”

“The judicial appointment and supervision of prosecuting attorneys was not uncommon in state courts in the early Republic,” Shane adds. “Grand juries are part of the judiciary, and the judicial appointment of a prosecutor to protect the integrity of a grand jury process would not violate the separation of powers.”

Courts also have clear power to allow reports by grand juries. The U.S. Court of Appeals for the 5th Circuit found in a 1973 ruling: “There is persuasive authority and considerable historical data to support a holding that federal grand juries have authority to issue reports which do not indict for crime, in addition to their authority to indict.” The U.S. Attorney’s Manual notes that this “power to issue reports” exists in common law.