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The mendaciousness of the latest DOJ attack on judges
Blanche created a new rule out of thin air and is mad it’s not being followed.
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In its current role as a wholly owned subsidiary of President Donald Trump, the Department of Justice continues to make a mockery of itself.
On Wednesday, Attorney General Todd Blanche puffed out his chest and boasted that the DOJ had filed a judicial misconduct complaint with the Eighth Circuit Court of Appeals against all but one district court judge in the District Court of Minnesota.
What “various judicial canons” did literally all but one of Minnesota’s federal district court judges violate and how? Well, they spoke to the New York Times and said things that made Trump sad.
You will not be surprised to learn that this does not constitute a violation of judicial ethics, but that little fact isn’t going to stop Blanche and company, now is it?
A slippery dope
In September, then-Chief Judge for the District of Minnesota, Patrick Schiltz, gave an interview to the Times, which also spoke with six of the seven other judges on Minnesota’s federal bench.
Yes, having a sitting judge talk to the press about how the administration’s behavior imperils the rule of law is unprecedented, but so is having an administration that imperils the rule of law on the regular. Schiltz specifically declined to discuss any ongoing cases, which could have caused some ethical problems. Since he didn’t, the DOJ just decided to invent, wholesale, a new judicial canon judges have to follow: “Judges are ethically prohibited from commenting publicly on cases pending in any court and making political or policy statements concerning matters that are or have been before them.”
The first half of the sentence is true and drawn from Canon 3.A.(6) of the Code of Conduct for United States Judges. But the second half — that judges cannot make “political or policy statements concerning matters that are or have been before them” — is nonsense that doesn’t appear anywhere in any of the canons.
In fact, it substantially misstates the canons themselves, which include a carveout in Canon 4.A.(1): “A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”
And just in case that wasn’t clear, the commentary on that canon specifically states that, well, we live in a society: “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.”
