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Alec Baldwin’s Attorney Makes A Constitutional Argument For Dismissal of Prosecutor

Credit: Gage Skidemore | Flickr

The Background on Alec Baldwin’s current criminal litigation

Alec Baldwin is currently on trial for involuntary manslaughter in New Mexico for the shooting of Halyna Hutchins, a cinematographer that was sadly killed by a prop gun on the film set of “Rust.” As his charges and trial get underway, Baldwin’s attorney, Luke Nikas, has filed a motion for disqualification against Andrea Reeb, who was appointed as special prosecutor in this case while simultaneously holding a position as a New Mexico state representative. In hopes to expedite the review process, the District Attorney’s office appointed Reeb to assist in charging decisions and other tasks the District Attorney’s office required.

There has been a lot of criticism behind the motion to remove Andrea Reeb. The confusion seems to stem from the obscurity behind the argument. When mentions of political processes are made, tempers about politics can flare and confusion as to what is being argued gets mischaracterized in the eyes of the public. It is important to note that the motion to disqualify is not due to political bias, but rather due to a separation of powers issue. This principle of the New Mexico Constitution provides the foundation of the motion. However, the question remains: will the motion made by Alec Baldwin’s attorney be granted or denied?

New Mexico Separation of Powers Doctrine

The powers of New Mexico’s government are divided into three equal branches: the legislative branch, the executive branch, and the judicial branch. No one person is allowed to exercise the power that properly belongs to another branch.

“We are committed by our Constitution to the doctrine of separation of powers. It is fundamental that no one of the three branches of government can effectively delegate any of the powers which peculiarly and intrinsically belong to that branch.” State v. Roy, 40 N.M. 397, 418 (1936).

According to the New Mexico Constitution, the legislature may establish a body with statewide jurisdiction other than a court to determine the rights and liabilities of individuals from occurrences that involve personal injury by an employee during the course of employment. However, this can only be done by statute. The New Mexico Constitution is very clear in its language that branches do not share power but divide it so no one branch controls too much. This is more evident in Southwest Underwriters v. Montoya, 80 N.M. 107, 109 (1969), where the court held,

“Thus, the Constitution itself, in plain, unambiguous and explicit language, forbids a construction of the Constitution that would authorize the exercise of the Constitution which would authorize the exercise of such a power by implied authority.”

The New Mexico Supreme Court has been very clear that separation of powers is the fundamental principle that builds the philosophy of the state. The court goes as far as even making it abundantly clear that by no means can one branch impede on the powers of another branch.

How Other Courts Have Dealt With Separation of Powers Issues

In Caruso v. Eighth Judicial District Court in and for County of Clark, 509 P.3d 604 (Nev. May 18, 2022), the Supreme Court of Nevada held that Nevada’s Constitution prohibited a senator from passing laws and working as a prosecutor. Although in dissent, Justice Silver agreed that

“the separation of powers clause forbids legislators who are promoting legislation on behalf of their constituents from concurrently acting as a prosecutor-executing criminal prosecutions through enforcement of our state laws.” Id.

Andrea Reeb is facing a similar issue. In Caruso, a state senator was acting as a prosecutor and the court there found it to be a violation of separation of powers. A simple google search of Andrea Reeb shows her campaign website, where she refers to herself as a New Mexico state representative, a position through which she passes legislation. These powers conflict with her newly appointed position as a special prosecutor. It is unclear whether a prosecutor is a member of the executive branch or the judicial branch; however, it is clear that prosecutors are not members of the legislative branch. Prosecutors exercise powers that most certainly do not involve passing legislation and thus any exercise of prosecutorial power by a state representative would be viewed as usurpation.

Mr. Nikas’ Argument For Prosecutor Disqualification

Mr. Nikas has based his argument on the fact that the New Mexico State Constitution Article III, Section I, requires separation of powers. Being appointed as a special prosecutor while serving as a legislator is problematic because the duties of a special prosecutor are not powers that “properly belong” to the legislative branch as Article III, Section I requires of its officials. State ex rel. Taylor v. Johnson, 125 N.M. 343 (N.M. 1998) held that Article III, Section I of the New Mexico Constitution articulates the

“cornerstones of democratic government: that the accumulation of too much power within one branch poses a threat to liberty.”

In Mr. Nikas' motion to the court, he argues Andrea Reeb is a legislator tasked with upholding the responsibilities and duties of the legislative branch. Andrea Reeb acting as a prosecutor would require that she perform the functions of a judicial or executive branch official at the same time as her legislative functions; on its face this would violate the separation of powers doctrine. If Reeb wants to seek the ability to continue with this case, she may need to seek an exception through a state statute allowing the exercises of these powers. Although there is no set precedent, Mr. Nikas argues that this action by Ms. Reeb would be a clear violation and is grounds for disqualification. To add to his argument, he highlights the dangers of allowing Reeb to exercise powers of three different branches.


If Andrea Reeb, a legislator, is allowed to exercise power of either branch, it would be an unconstitutional act. The court is likely to view Andrea Reeb’s involvement in this case to be a usurpation of power that does not properly belong to the legislative branch as the New Mexico Constitution requires. It seems very likely that the court will disqualify Andrea Reeb from the case.

*The views expressed in this article do not represent the views of Santa Clara University.


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