Where’s Chief Justice John Roberts?

Contrary to popular belief, judges are not an island unto their own.  They are part of a branch of government, headed by an individual like everyone else.  The current head is Chief Justice of the Supreme Court John Roberts and he is not powerless to limit or even stop egregious behavior on his watch.  The question is:  Where has he been the past 6 years?

The media often likes to pretend that judges operate almost entirely unfettered, free to rule however they like, issue whatever opinions they like, approve whatever warrants pass their desk, and generally conduct themselves in a completely unaccountable manner.  This belief is predicated on two things in my opinion:  The nature of their lifetime appointments and the awesome power they wield in their courtrooms make it appear judges are special people, imbued with a discretion and an impartiality lacking in everyone else.  Whatever the root cause, there is a tendency to defer to any ruling, no matter how egregious, especially when the politics align with our own.  This deference is supposed to enable them to impartially interpret the law and weigh the merits of each case free from political or other interference, but in recent years especially, it serves mainly to make them free from any and all accountability.  Instead, they are the kings and queens of their courtroom, able to say and do whatever they please regardless of the law or the impartial application of it.

How else can you explain why supposedly non-political judges feel free to attack President Donald Trump in open court and pronounce him guilty of crimes he has never been charged with?  In March, U.S. District Judge David Carter issued a ruling on the release of documents to the January 6 Select Committee in the House of Representatives.  His sole job was to either permit or deny access to documents.  Instead, he ranted that the “illegality of the plan [to overturn the election] was obvious” and Trump was acting “corruptly.”  He went even further to conclude that the former President was conducting a “coup in search of legal theory” despite that he has never been charged with anything.  Judge Carter was downright tame compared to Judge Reggie Walton, who declared that the former President was a “charlatan” in open court without anyone asking for his opinion, and when he had no right or reason to give it.  “You know, I think our democracy is in trouble,” Judge Reggie Walton said during the jury trial for a January 6 defendant. “Because unfortunately, we have charlatans like our former president, who doesn’t in my view really care about democracy, but only about power. And as a result of that, it’s tearing this country apart.”  He continued, “I have a concern that we have, unfortunately, American citizens who were so gullible that they were willing to accept what was being said without any proof that the allegations about the election had any merit whatsoever.  People are just outraged at how they feel our system is not taking seriously what happened on that day because of their fear of the future of this country.” ABC News reported it as a “scathing rebuke,” which may be true but it is not Judge Walton’s rebuke to give.  His opinion on political matters is no more valuable than anyone else’s.  His job is to rule on cases, not grandstand and lecture the country with his political philosophy.

The case of former Trump National Security Advisor Michael Flynn follows a similar if more disturbing pattern.  General Flynn was the subject of a quasi-sting operation by the FBI based on something called the Logan Act, an 18th century law that prevents civilians from interfering with diplomatic affairs.  No one has ever been charged under this act and General Flynn was an authorized representative of the incoming President, but the FBI under James Comey mounted an investigation regardless, something even he admitted would never be attempted in another administration.  The general believed he was meeting with the FBI as part of the transition to incoming President Trump.  They were actually investigating him covertly and without informing any White House attorneys, a massive breach of democratic norms.  General Flynn was ultimately charged with lying to the FBI, but as additional facts came out, the Justice Department decided not to prosecute and withdrew from the case, citing two key reasons for their change in position.  First, General Flynn’s statements didn’t materially affect the outcome of any investigation, and second he might well have remembered something incorrectly instead of lying.  President Trump also issued a pardon to be certain the matter was completely settled.  Under normal circumstances this would have been enough to end the matter, but nothing is normal in the Trump Era and the presiding judge, Emmet Sullivan wasn’t satisfied.  He decided grandstanding was the best option, insisting he had the power to sentence General Flynn regardless of the Department of Justice’s decision to withdraw or President Trump’s pardon.  He declared that the President “has not hidden the extent of his interest in this case” and impugned the behavior of the Justice Department, saying their actions “raise questions regarding its motives in moving to dismiss.” The judge reiterated his belief that the Logan Act somehow applies to the incoming President’s team.  “Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermines the policy of the sitting President prior to the President-elect taking office,” he wrote.  Finally, he insisted that General Flynn might still be guilty, claiming accepting a pardon is an admission of guilt and it “does not, standing alone, render (Mr. Flynn) innocent of the alleged violation.”

Unnecessary and unbecoming rhetoric is one thing, unjustified, potentially biased legal actions are another, a far worse phenomenon.  In the wake of the FBI raid on former President Donald Trump’s Mar-a-Lago residence, the media repeated a constant refrain:  The warrant was approved by a Federal judge and therefore we should trust everything is proper.  A judge wouldn’t approve a warrant out of personal bias or for other reasons.  While we do not yet know the underlying information the Department of Justice provided to support the warrant, we do know that Magistrate Bruce Reinhart was no fan of President Trump.  In January 2017, he engaged in a social media exchange with President Clinton’s Labor Secretary Robert Reich, where he claimed Trump had no decency and didn’t have the moral stature to kiss civil rights leader and Congressman John Lewis’s feet.  We also know that Judge Reinhart had previously recused himself from a case involving Donald Trump and Hillary Clinton, because a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  This includes a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts.”  No explanation has been provided as to why he didn’t recuse himself this time.  Lastly, Judge Reinhardt worked for the Justice Department as both an Assistant US Attorney and a trial attorney for the Public Integrity Section, suggesting a rather cozy relationship with other prosecutors and the FBI.  Far be it from me to impugn anyone’s motives, but it certainly seems like the warrant was authorized with a judge who had no love for the target, had refrained from taking cases where the target was involved, and was closely connected with the prosecution.  At the least, we should expect an explanation as to why Judge Reinhardt can be impartial now.  We have none.

In 2016 and 2017, judges on the secret Foreign Intelligence Surveillance Act court approved four surveillance warrants on a member of the Trump campaign, Carter Page, an unprecedented action as far as we are aware.  We didn’t learn until 2019 that some of the information in these warrants was falsified by the FBI and it is reasonable to believe that the court was misled to some extent.  At the same time, we still do not know who sat on this court and what discussions they had to ensure the FBI was acting appropriately in a politically perilous situation.  Did they express any skepticism at all that candidate Trump had a spy on this team?  Did they question what other avenues the FBI was pursuing short of clandestine surveillance?  Did they ask what the FBI sought to find with continued surveillance?   Or did they simply rubberstamp the warrant for whatever reason?  The Foreign Intelligence Surveillance Act requires that the government demonstrate warrants after the first are producing actionable information.  This means, or at least strongly implies, the judges should have requested and reviewed materials at least three additional times to ensure the investigation was legitimate.  At each point, additional information should have been presented demonstrating that this intrusion into a US citizen’s private affairs and the public operation of a candidate and then a President was justified.  Sadly, we have no idea if these steps were properly followed, what questions the judges asked, or what information they accepted in support of the continued warrants.  The entire process is a classic black box, one where we are simply supposed to trust that the outcome is fair, unbiased, and conforms to the law, even though we know that was clearly not the case:  No charges were ever filed against Carter Page or any of his associates.  An Inspector General found 17 material errors in the warrants, but for some reason, we are not supposed to ask, what did the judges know and when did they know it?  We don’t even know who the judges were to this day.

None of this is normal.  All of it is unacceptable, if not unlawful, and yet everyone acts as if there’s absolutely nothing to be done about it.  Judges are somehow immune to accountability or even above the law, so long as they are presiding over a case.  The Founders, however, would surely disagree:  They were not shortsighted enough to invest almost unlimited power in the hands of a single person, and the Constitutional Order they established offers two potential remedies, one extreme, one fairly commonplace.  On the extreme side of the spectrum, judges can be impeached by the House of Representatives and tried in the Senate, similar to presidents except with a far lower standard.  Instead of “high crimes and misdemeanors,” judges serve for life based on “good behavior.”  Since 1803, the House of Representatives has impeached 15 judges, and the Senate has removed eight, averaging an impeachment every 14-15 years and a removal approximately every 30.   The charges against the impeached judges include “mental instability,” “arbitrary and oppressive conduct of trials,” “abuse of the contempt of power,” “misuses of office,” as well intoxication, bribery, improper use of funds, etc., meaning judges can and have been impeached without the commission of an actual crime.  In recent years, however, this valuable tool to ensure judges are performing their duties properly has fallen out out of public discussion.  No judge has been removed since 1989.  None impeached since 2010.  This could mean we are about to see a renaissance of the practice, and yet barely anyone mentions it. Sometimes the mere threat is as effective as the punishment.  Judges should be much more keenly aware that their lifetime appointment can be revoked, should they stray from the path.

There is another, far less drastic means to reign in out of control judges, however.  Namely, their boss.  Judges are not an island unto their own.  They are part of a branch of government, headed by an individual like everyone else.  The head of the judiciary branch is the Chief Justice of the Supreme Court, currently John Roberts, and he is not powerless to limit or even stop egregious behavior on his watch.  The Chief Justice is not empowered to influence or overrule decisions on the rule of law, nor can he fire misbehaving judges, but is the presiding officer of the Judicial Conference of the United States which is charged with matters concerning the conduct of courts.  The Conference has the power to issue standards regarding judicial behavior and to report on any judges that fail to follow those standards; these standards can then serve as grounds for impeachment in the event of truly egregious behavior.  Nothing in the Constitution prevents the establishment of a disciplinary process for judges either.  A ruling may not be overturned without following the appropriate process, but judges, especially in the lower courts, can certainly be limited in their future cases and otherwise sidelined.  The Chief Justice is also the highest judicial officer in the country, and is not obligated to maintain silence in the face of bad behavior.  He can and should certainly speak out whenever a judge behaves improperly, either inserting political matters or their personal opinion when it is unnecessary and inflammatory, or when judges continue to issue unjustified warrants.

The irony with Chief Justice Roberts is particularly rich:  He frequently declaims the politicization of the courts and believes judges are impartial.  In 2018, he made remarks at the University of Minnesota Law School, “I will not criticize the political branches,” he began before emphasizing “how the judicial branch is—how it must be—very different.” He stated his belief that judges are different from other public officials.  They “do not speak for the people, but we speak for the Constitution.”  “Our role is very clear,” the Chief Justice insisted, “We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them.”  This is undoubtedly true in principle, but in practice it is increasingly becoming a tradition honored more in the breach, to paraphrase Hamlet.  Throughout it all, Chief Justice Roberts has remained entirely silent.  He has not admonished any judge, however out of bounds their behavior.  He has not issued any guidelines.  He has not even bothered to make a comment.  Absent barely begins to describe him.  It’s as if he was as much of an observer as me writing this post.   If Chief Justice Roberts truly believes his own rhetoric, he should make it so and can easily start by exercising his power to reign in an increasingly out of control judiciary.  Rather than remaining silent in the face of obvious political grandstanding and abuses of authority, he should stand up and ensure his branch of government operates within the boundaries he himself proscribes.  Otherwise, he’s no more trustworthy than anyone else in the corrupt swamp that is Washington, DC.

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