Latest / Bloomberg Law / Alaska Judge Scandal & Impeaching Two Justices

Transcript

Alaska Judge Scandal & Impeaching Two Justices · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:11
Speaker 2: The Federal Judiciary is considering whether there should be more
0:14
Speaker 2: guidance for judges about hiring law clerks after two judges
0:19
Speaker 2: hired a clerk who was reported to have sent racist texts,
0:23
Speaker 2: and that clerk then went on to get a clerkship
0:25
Speaker 2: with Supreme Court Justice Clarence Thomas joining me is an
0:29
Speaker 2: expert in legal ethics. Arthur Hellman, a professor at the
0:32
Speaker 2: University of Pittsburgh Law School. So House Democrats in twenty
0:37
Speaker 2: twenty one had filed a complaint against Chief Judge William
0:41
Speaker 2: Pryor of the Eleventh Circuit and District Judge Corey Mays
0:46
Speaker 2: of the Northern District of Alabama into the hiring of
0:49
Speaker 2: this clerk. Tell us about the controversy and what ended
0:52
Speaker 2: up happening well.
0:53
Speaker 1: The controversy centers around the investigations that judges Prior and
1:02
Speaker 1: May's the circuit judge and the district judge carried out
1:06
Speaker 1: with respect to this individual. Because I understand it, the
1:11
Speaker 1: question is whether they adequately vetted her before hiring her.
1:17
Speaker 1: And the chief Judge of the second Circuit, to which
1:22
Speaker 1: the proceeding was transferred, found that they did all they
1:28
Speaker 1: were required to and dismissed the complaint, and the Judicial
1:33
Speaker 1: Council of the Circuit affirmed that dismiss So the proceeding
1:38
Speaker 1: was completed, but the Committee of the Judicial Conference of
1:42
Speaker 1: the United States what it should be reopened, and that's
1:45
Speaker 1: what gave rise to one of the requests at the
1:50
Speaker 1: March meeting of the Judicial Conference to look into that
1:54
Speaker 1: review process. So we have two separate issues here, one
1:57
Speaker 1: that involves the Committee on Codes of Conduct and the
2:01
Speaker 1: other that involves the Committee on Judicial Conduct and Disability.
2:06
Speaker 2: How much investigation of clerks should judges be doing well?
2:11
Speaker 1: I think that's one of the issues that the Committee
2:15
Speaker 1: on Codes of Conduct will be looking into. What is
2:20
Speaker 1: due diligence in this respect and what are the ethical
2:24
Speaker 1: obligations of a federal judge. It's important to emphasize that
2:29
Speaker 1: the Committee on Codes of Conduct is tasked with interpreting
2:34
Speaker 1: and giving guidance based on the Code of Conduct. It
2:39
Speaker 1: is not otherwise in the business of telling judges how
2:43
Speaker 1: to run their chambers or here the two overlap a
2:48
Speaker 1: little bit, But for example, is it enough that the
2:53
Speaker 1: judge asks the clerk Is there anything you've done in
2:57
Speaker 1: the past that would embarrass you or me if it
3:01
Speaker 1: came out now, or should the judge carry out is
3:05
Speaker 1: it her own investigation? Now? I don't do much social
3:09
Speaker 1: media myself, so I'm not really the person to talk
3:14
Speaker 1: about that in detail. But my sense is that a
3:17
Speaker 1: thorough background investigation of that time will be very time
3:22
Speaker 1: consuming and laborious, and I'm not sure a judge should
3:26
Speaker 1: be expected to do that. A judge should be able
3:29
Speaker 1: to ask the law clerk if there is any such
3:33
Speaker 1: material in the works past, and take the clerk's word
3:37
Speaker 1: about that. But the Committee on Codes of Conduct might
3:41
Speaker 1: decide that something something more than that is required. But
3:46
Speaker 1: their task at this point is to consider the process
3:50
Speaker 1: by which judges hire their law clerks, law clerks who
3:54
Speaker 1: may have something in their past that cast doubt on
3:58
Speaker 1: the fitness of the clerk presence service as a law
4:02
Speaker 1: clerk to a federal judge.
4:04
Speaker 2: How long might this process take?
4:06
Speaker 1: That I think is one of the issues that the
4:08
Speaker 1: committee will have to consider. I mean, this is not
4:10
Speaker 1: the major thing that a judge does. I mean, it's
4:14
Speaker 1: a very important part of the judges work. But the
4:17
Speaker 1: judges nominated and confirmed to decide cases. So every minute
4:23
Speaker 1: that is taken away from those tasks, the judges not
4:27
Speaker 1: doing what or she was nominated and confirmed to do so.
4:32
Speaker 1: Figuring out how thorough the investigation should be and whether
4:37
Speaker 1: there are any particular things a judge should do in
4:42
Speaker 1: checking on a law clerk is one of the questions
4:46
Speaker 1: that the Committee and Codes of Conduct will now be
4:49
Speaker 1: looking into.
4:51
Speaker 2: They also wanted to get your position on the conservative
4:55
Speaker 2: federal judges who announced they were going to boycott and
5:00
Speaker 2: clerks from particular law schools where there were demonstrations and
5:04
Speaker 2: disruptions on campuses. These are law schools that would be
5:08
Speaker 2: considered liberal. So just eliminating a whole block of students
5:13
Speaker 2: because of what happened on their campuses.
5:16
Speaker 1: Well, that raises some related but distinct and very interesting
5:21
Speaker 1: and important issues. Actually, I think our key to this
5:25
Speaker 1: is why the federal judges are taking that possession. For example,
5:31
Speaker 1: a judge might say, if a student has gotten his
5:35
Speaker 1: or her legal education at a law school that discourages
5:40
Speaker 1: dissent and allows raucous intrusions on presentation of unpopular views,
5:49
Speaker 1: that environment diminishes the quality of the education that the
5:54
Speaker 1: student gets. Because an important part of legal education, important
5:59
Speaker 1: part of legal reasoning is listening to other views and
6:06
Speaker 1: processing them and responding to them in a professional way.
6:10
Speaker 1: So a judge might think the person in his chambers
6:14
Speaker 1: should be somebody who's gotten a legal education that is
6:18
Speaker 1: not tainted in that way. And you know, maybe we
6:21
Speaker 1: should back up a minute, because it really relates to
6:24
Speaker 1: both of these topics very were Judges today have very
6:28
Speaker 1: very heavy workloads, and they're very heavily dependent on their
6:33
Speaker 1: law clerks. So it's important that these clerks have gotten
6:38
Speaker 1: the best possible training. So as I say, if the
6:41
Speaker 1: judge believes that some of the practices at a particular
6:45
Speaker 1: law school diminish the quality of the training, I think
6:50
Speaker 1: that would be a legitimate job related reason for not
6:55
Speaker 1: hiring students from that law school, even though it is
6:58
Speaker 1: in a sense to the students. Although you know, if
7:03
Speaker 1: you look at it more broadly, you talk about boycotts. No,
7:07
Speaker 1: there are many judges who are their law clerks only
7:10
Speaker 1: from let's say top fourteen or top twenty, whatever it
7:14
Speaker 1: is law schools. Are they boycotting the other one hundred
7:18
Speaker 1: and eighty? I don't think we would ordinarily say that,
7:20
Speaker 1: would say that the judges decided, rightly or wrongly, that
7:24
Speaker 1: the most effective way of finding good law clerks is
7:27
Speaker 1: to stick with a small number of elite law schools
7:30
Speaker 1: where they know some faculty and can rely on recommendations.
7:35
Speaker 1: So if the reason is related to the carrying out
7:40
Speaker 1: of the judge's adjudicated responsibilities, I'm not sure I see
7:45
Speaker 1: a problem in them.
7:46
Speaker 2: Choosing law clerks from the best law schools because you
7:49
Speaker 2: think that they'll be the best clerks. Seems different to
7:54
Speaker 2: me than not choosing students from top schools like Stanford
7:58
Speaker 2: and Yale because some conservative speakers face blowbacks on campus.
8:04
Speaker 1: It may be problematic if the judges are doing this
8:09
Speaker 1: to change the culture in the law schools. I say, maybe,
8:13
Speaker 1: because judges are allowed to write and speak out on
8:18
Speaker 1: the improvement in the legal profession, and maybe it's part
8:23
Speaker 1: of that, or a small step further to say that
8:27
Speaker 1: judges can hire their law clerks in a way that
8:31
Speaker 1: they believe will improve the culture at law schools. But
8:36
Speaker 1: that's a very different kind of motivation or purpose, and
8:40
Speaker 1: that when I think, would be more controversial. As I say,
8:44
Speaker 1: I think you can make a case that that is
8:47
Speaker 1: legitimate within the code of conduct. But other people might
8:51
Speaker 1: say that it looks like using the judge's position to
8:56
Speaker 1: advance the judge's personal interests, which is one of the
9:00
Speaker 1: things that the code explicitly prohibits. So it's a question
9:04
Speaker 1: of how you view that. Is it a way of
9:07
Speaker 1: improving the legal profession, which is something the judge is
9:11
Speaker 1: explicitly allowed to do under the code, or is it
9:14
Speaker 1: advancing a personal interest, which is something the judge is
9:17
Speaker 1: explicitly prohibited from going.
9:19
Speaker 2: I'll just note these conservative judges were Trump appointees. Did
9:24
Speaker 2: they face any consequences because of this?
9:27
Speaker 1: I think possibly a complaint has been filed a while
9:31
Speaker 1: that I'm pretty sure no order has been issued. Certainly
9:35
Speaker 1: there have been criticisms from other judges about the so
9:41
Speaker 1: called boycott. The grounds have been along the lines that
9:44
Speaker 1: I suggested that the judges are using their position to
9:49
Speaker 1: change the culture at law schools, and that's a misuse
9:54
Speaker 1: of the judicial position, that judges should be concerned in
9:57
Speaker 1: their hiring only with getting the people for their chambers.
10:02
Speaker 2: Let's turn out of the resignation last week of a
10:06
Speaker 2: judge in Alaska over allegations of sexual misconduct. A federal
10:12
Speaker 2: judge in Alaska Joshua Kindred resigned and could face impeachment
10:17
Speaker 2: after an investigation found that he had an inappropriate sexual
10:22
Speaker 2: relationship with a female law clerk, and that he created
10:25
Speaker 2: a hostile work environment and appeared to have no filter
10:29
Speaker 2: in his discussions with clerks, discussing his romantic preferences, his
10:33
Speaker 2: sex life, his divorce, the law clerk's boyfriends and dating lives,
10:37
Speaker 2: on and on. The investigation by the judiciary into the
10:41
Speaker 2: Trump appointee resulted in a one hundred and five page
10:45
Speaker 2: report with more than one thousand pages of exhibits, including
10:49
Speaker 2: seven hundred pages of text messages between the judge and
10:53
Speaker 2: his clerks. The inquiry could lead to the reopening of
10:57
Speaker 2: multiple criminal cases that came before Kendrick during his more
11:01
Speaker 2: than four years on the bench. I've been talking to
11:04
Speaker 2: legal ethics expert Arthur Hellman, a professor at the University
11:07
Speaker 2: of Pittsburgh Law School. So there was this outrageous conduct,
11:12
Speaker 2: but it took almost two years after the chief Judge
11:16
Speaker 2: learned about it for the judiciary to complete its investigation.
11:20
Speaker 2: And in those two years there were criminal cases that
11:23
Speaker 2: came before Kindred, And now these findings could lead to
11:26
Speaker 2: the reopening of many of those cases.
11:29
Speaker 1: And others well, it is somewhat caauseling because the evidence
11:34
Speaker 1: has presented in the Judicial Council report is so strong.
11:39
Speaker 1: You would think it would not have taken almost two
11:42
Speaker 1: years to find all that evidence and to come to
11:47
Speaker 1: a conclusion that this individual was unfit to serve as
11:51
Speaker 1: a federally the conclusion they reached when they referred the
11:55
Speaker 1: matter to Judicial Conference at the United States for a
11:59
Speaker 1: consideration of possible recommendation to Congress for consideration of impeachment,
12:06
Speaker 1: that is a little hard to understand. What maybe is
12:10
Speaker 1: that the people they talk to were initially reluctant to
12:14
Speaker 1: speak out, and if that's so, it really raises some
12:21
Speaker 1: very troubling issues because, as you know, it was it
12:24
Speaker 1: five or six years ago now, the Judiciary completely revamped
12:29
Speaker 1: its procedures regarding the workplace in the wake of the
12:33
Speaker 1: accusations against pulling the judge Alex Kozinski, and I have
12:38
Speaker 1: to say I thought they had done a pretty good
12:40
Speaker 1: job and that they were really trying to create, as
12:44
Speaker 1: Chief Justice Roberts put it, an exemplary workplace in every
12:49
Speaker 1: judicial chamber, and particularly in the Ninth Circuit, which has
12:54
Speaker 1: been a leader in this as in so many other
12:57
Speaker 1: administrative aspects of the federal judicial that this took that
13:02
Speaker 1: long to get resolved is very troubling, and I think
13:08
Speaker 1: it does call lass for another look at how the
13:13
Speaker 1: judiciary is handling this very important aspect of the administration
13:18
Speaker 1: of the federal courts.
13:20
Speaker 2: The repercussions from this are going to be enormous. Federal
13:25
Speaker 2: prosecutors in Alaska have identified nearly two dozen criminal cases
13:30
Speaker 2: with potentially undisclosed conflicts of interest involving former Judge Kindred
13:36
Speaker 2: and the attorneys who worked on the cases before him.
13:39
Speaker 2: Three of those are in the US Attorney's office.
13:42
Speaker 1: Well, I'm not an expert on federal criminal prosecutions, but
13:47
Speaker 1: what I will say is that that aspect of this
13:51
Speaker 1: particular case underscores the point you made initially that there
13:56
Speaker 1: was a particular reason here for proceeding with some swiftness,
14:02
Speaker 1: giving all due process to the judge. But there were
14:06
Speaker 1: some particular reasons here why the matter should have been
14:11
Speaker 1: resolved as quickly as possible so that these repercussions would
14:16
Speaker 1: be minimized.
14:18
Speaker 2: The judge did recuse himself in some cases. How is
14:23
Speaker 2: it determined whether there was a conflict of interest?
14:27
Speaker 1: Well, what the statute says is apart from some specific
14:31
Speaker 1: circumstances where a judge must recuse, for example, where the
14:35
Speaker 1: judge has a financial interest in the outcome of the case,
14:39
Speaker 1: the more general provision says that a judge must accuse
14:43
Speaker 1: if a reasonable person would doubt the judge's impartiality, and
14:50
Speaker 1: judicial interpretations of that statute set from four fifty five
14:54
Speaker 1: have said that you look at that question from the
14:58
Speaker 1: standpoint of a re reasonable person outside the court, but
15:03
Speaker 1: informed of all the circumstances. So those are the elements
15:08
Speaker 1: of the test. It's an objective test. Again, it's a
15:12
Speaker 1: reasonable person, but not a person within the judiciary, because
15:17
Speaker 1: the courts have said that people within the judiciary may
15:20
Speaker 1: be too inclined to discount the possibility that the judge
15:25
Speaker 1: would look partial or biased. So you look at the
15:29
Speaker 1: reasonable person outside the judiciary. But at the same time,
15:34
Speaker 1: the reasonable person is fully informed of the circumstances, and
15:38
Speaker 1: so the judge has to put himself or herself in
15:42
Speaker 1: the position of that reasonable person.
15:44
Speaker 2: Can you think of another case where there was misconduct
15:49
Speaker 2: like this by a judge and criminal cases got thrown
15:53
Speaker 2: out or retried.
15:55
Speaker 1: No, nothing comes to mind. I mean, you do have
15:58
Speaker 1: a somewhat parallel situation with the bankruptcy judge in Texas,
16:03
Speaker 1: don't you where they are in the process of upsetting
16:08
Speaker 1: I think, or at least questioning some of the decisions
16:13
Speaker 1: made by the bankruptcy judge who was in a romantic
16:16
Speaker 1: relationship with a bankruptcy lawyer. So I think that is comparable.
16:23
Speaker 1: You mentioned the repercussions going forward. I think one of
16:28
Speaker 1: the most interesting questions and important questions about the Alaska
16:33
Speaker 1: judge is how did a person get to be a
16:36
Speaker 1: federal judge. I mean, this is a young guy, and
16:41
Speaker 1: this kind of behavior seems to me not the sort
16:45
Speaker 1: of thing that suddenly happens that a person suddenly engages in,
16:51
Speaker 1: and you would think that there would be some evidence
16:56
Speaker 1: of this in his career and his behavior as a lawyer. Now,
17:01
Speaker 1: as you know, before somebody is appointed to the federal bench,
17:05
Speaker 1: there's a very intense investigation. As it's more than one.
17:10
Speaker 1: There's the FBI, there's the White House, there's the ABA.
17:15
Speaker 1: The FBI in particular is very thorough. For example, I've
17:19
Speaker 1: gotten calls about people who worked for me briefly thirty
17:25
Speaker 1: years earlier because the nominee is required to list every
17:30
Speaker 1: person he or she has ever worked for. So how
17:34
Speaker 1: did Joshua Kindred get through that process where there are
17:39
Speaker 1: no warning signals in any of the conversations that FBI
17:44
Speaker 1: agents or the ABA committee members had members of the
17:48
Speaker 1: Alaska legal community that would have alerted them to the
17:54
Speaker 1: very real possibility, which turned out to be the reality
17:58
Speaker 1: that this that you or just did not have the
18:01
Speaker 1: temperament to be a federal judge. Now, by the way,
18:05
Speaker 1: you had a similar failing twenty five years ago with
18:08
Speaker 1: Judge Fortius, who was impeached and convicted for actual bribery
18:14
Speaker 1: and other criminal activity that he had engaged in for
18:19
Speaker 1: many years in Louisiana and which has to have been
18:22
Speaker 1: known by many of the people in Louisiana legal community.
18:28
Speaker 1: That was another failure in my view, the vetting process,
18:32
Speaker 1: as far as I know, nobody has ever looked into
18:35
Speaker 1: or written about. But I think there's a serious concern
18:39
Speaker 1: here that the vetting process at the nomination slash confirmation,
18:45
Speaker 1: and it's really a nomination, you don't expect the Senate
18:48
Speaker 1: Judiciary Committee to carry out the kind of in depth
18:53
Speaker 1: investigation that the FBI, with all of its resources can
18:59
Speaker 1: do or that the a BA can do with its
19:02
Speaker 1: members in every state and every legal community. Those two
19:08
Speaker 1: organizations have the resources to carry out in depth investigations,
19:15
Speaker 1: and we really have to depend on them. In a
19:18
Speaker 1: likelihood they missed this. You know, it's possible that you know,
19:23
Speaker 1: that he had a complete personality change on the belt,
19:26
Speaker 1: and there's some suggestion that the isolation in the COVID
19:30
Speaker 1: lockdowns had some influence. But you know, isolation doesn't turn
19:36
Speaker 1: a man into this, this course speaking individual who harasses
19:41
Speaker 1: women in the way he did. You know, even to
19:45
Speaker 1: read about his behavior, it's an embarrassment, and behavior of
19:50
Speaker 1: that extreme, it seems to me doesn't start overnight or
19:55
Speaker 1: when a man takes the oath as a federal judge.
20:00
Speaker 1: To have been some signals in his earlier behavior that
20:04
Speaker 1: should have been called. So I would hope that one
20:09
Speaker 1: of the consequences of this very sad and unfortunate proceeding
20:16
Speaker 1: is that there will be a look not only at
20:20
Speaker 1: the procedures within the federal judiciary we haven't talked about,
20:25
Speaker 1: but within the executive branch and the vetting of judicial nominees.
20:31
Speaker 2: Considering all the information out there about hostile work environments
20:36
Speaker 2: and the legal case is over. It it's almost hard
20:39
Speaker 2: to believe that this judge didn't recognize what he was doing.
20:43
Speaker 1: Going back to our prior discussion of the Ninth Circuit
20:47
Speaker 1: and the Federal Judiciary putting new procedures in place, is
20:52
Speaker 1: that it may be that the panoply of procedures is
21:00
Speaker 1: possibly part of the problem now because one of the
21:05
Speaker 1: things I think that is absolutely essential is that there'd
21:08
Speaker 1: be one person who is responsible. You know, if everybody
21:13
Speaker 1: is responsible, then nobody is responsible. And here it's the
21:17
Speaker 1: Chief Judge. And I don't know if the Chief Judge
21:23
Speaker 1: addedly conveyed the message that if federal judge is misbehaving,
21:29
Speaker 1: I want to know about it. I will take action
21:32
Speaker 1: and I will make sure there's no retaliation.
21:34
Speaker 2: Thanks so much for coming on the show, Arthur as
21:37
Speaker 2: Professor Arthur Hellman of the University of Pittsburgh Law School
21:41
Speaker 2: coming up next on The Bloomberg Law Show. Articles of
21:45
Speaker 2: impeachment have been filed against Justice Clarence Thomas and Justice
21:49
Speaker 2: Samuel Alito. You're sure to fail, So what are the repercussions.
21:54
Speaker 2: I'm June Grosso. When you're listening to Bloomberg, New York
21:58
Speaker 2: Representative Alexandria Zeo Cortes has filed articles of impeachment against
22:03
Speaker 2: Supreme Court Justices Clarence Thomas and Samuel Alito for what
22:08
Speaker 2: she said was their failure to report gifts and refusal
22:12
Speaker 2: to recuse from cases in which they were conflicted. Progressives
22:15
Speaker 2: and others have criticized both justices over reports they accepted
22:19
Speaker 2: vacations from wealthy people and failed to recuse from cases
22:24
Speaker 2: despite conflicts they said were created by their spouses. The
22:28
Speaker 2: success of either resolution against arguably the Court's two most
22:32
Speaker 2: conservative justices is unlikely given the Republican control of the House.
22:38
Speaker 2: The New York Democrat and Maryland Democratic Representative Jamie Raskin
22:43
Speaker 2: wrote to Chief Justice John Roberts on June twentieth, urging
22:47
Speaker 2: him to investigate Thomas and Alito. Democratic senators have sent
22:51
Speaker 2: similar requests to the Chief Justice. Of course, the Chief
22:54
Speaker 2: has taken no action. Joining me is an expert in impeachment.
22:59
Speaker 2: Frank Bowman, a professor at the University of Missouri Law School,
23:03
Speaker 2: so tell us about the articles against Thomas well.
23:07
Speaker 3: There are three articles that have been filed by Representative
23:10
Speaker 3: Ocasio Cortes and some of her colleagues, Essentially they allege
23:16
Speaker 3: that Justice Thomas really improperly refused to recuse himself from
23:23
Speaker 3: a variety of matters based on three things. The first
23:28
Speaker 3: article has to do with his receipt of gifts from
23:32
Speaker 3: Harlan Crow and other folks broadly associated with the American
23:38
Speaker 3: Enterprise Institute and other conservative entities, the argument there being
23:43
Speaker 3: that these entities at least file Amiekus briefs in matters
23:48
Speaker 3: that appeared before the court, even if they're not parties,
23:51
Speaker 3: and thus they have an ongoing interest in the outcome
23:53
Speaker 3: of cases in the court. The second article has to
23:56
Speaker 3: do with Missus Thomas's professional activity. She has, over the
24:01
Speaker 3: years had various consulting arrangements or consulting entities which are
24:07
Speaker 3: through interwoven in the conservative legal political movement, and various
24:13
Speaker 3: folks in that constellation of people and enterprises and think
24:18
Speaker 3: tanks and so forth have funneled money to Jenny Thomas
24:23
Speaker 3: through her entities, And here too, the argument is that
24:27
Speaker 3: Thomas should have refused himself in any matters in which
24:32
Speaker 3: any of the various entities that have funneled money to
24:35
Speaker 3: his wife might have filed a brief more habit some
24:39
Speaker 3: sort of interest, and the third one is the one
24:43
Speaker 3: which probably has the most bite to me, and that's
24:47
Speaker 3: one in which the argument is that Justice Thomas should
24:52
Speaker 3: have recused himself essentially in all the cases that had
24:54
Speaker 3: anything to do with Trump's effort to overturn the twenty
24:57
Speaker 3: twenty election results, because his wife was involved in the
25:03
Speaker 3: Trump coup attempt. Now, the degree of her involvement is
25:06
Speaker 3: a little bit unclear, but she certainly was actively advising
25:12
Speaker 3: various people in clinical staff and others about how to
25:16
Speaker 3: proceed during Trump's effort to overturn the election between November
25:20
Speaker 3: twenty twenty and January twenty twenty one. And the argument
25:24
Speaker 3: there is, you know, your wife, Justice Thomas, is actually,
25:29
Speaker 3: you know, directly involved, albeit not at the center, but
25:33
Speaker 3: directly involved in this effect conspiracy to overturn an election,
25:39
Speaker 3: And you have no business ruling on the merits of
25:43
Speaker 3: any cases involving in involving that coup, whether they involve Trump,
25:48
Speaker 3: whether they involve neither other people were charged, or just
25:52
Speaker 3: the general issues that are raised by that coup attempt,
25:56
Speaker 3: because there's certainly a reasonable inference to be drawn that
26:00
Speaker 3: you're not impartial in these cases because a your wife
26:03
Speaker 3: was directly involved in this she was potentially at least
26:07
Speaker 3: a witness, indeed was a witness in front of the
26:09
Speaker 3: January sixth committee. Arguably she could have been a defendant.
26:13
Speaker 3: She has not been charged, of course, but she was
26:16
Speaker 3: certainly potentially a defendant in any case charging a criminal
26:20
Speaker 3: conspiracy arising from January sixth in its antecedents. So those
26:24
Speaker 3: are the three arguments against Thomas. I think the first
26:29
Speaker 3: two are at least undeveloped. The third one is a
26:33
Speaker 3: stronger case for recusal certainly, and thus maybe as fractionally
26:41
Speaker 3: stronger case for impeachment.
26:43
Speaker 2: By contrast, the allegations against Justice Samuel Alito are shorter.
26:48
Speaker 3: Explain those well, I mean, I think they're really really
26:53
Speaker 3: released in both actually and on a constitutional basis. I mean,
26:56
Speaker 3: in essence, they arise out of the flag controversy. In essence,
27:01
Speaker 3: the argument is, well, Alito or somebody and his family
27:04
Speaker 3: flew an upside down US flag and the appeal to
27:09
Speaker 3: Heaven revolutionary flag, which are in some circles associated with Trump,
27:14
Speaker 3: or the effort to overturn the twenty twenty election. That,
27:17
Speaker 3: by extension is said to indicate that Lee to himself
27:21
Speaker 3: had some sympathy with the effort to overturn the election,
27:26
Speaker 3: and therefore you have to refuse himself and so forth
27:29
Speaker 3: and so on. And the two problems with that, I mean,
27:31
Speaker 3: one is that the facts as to who flew what flags, when,
27:36
Speaker 3: and you know why, are extremely unclear, and you don't
27:41
Speaker 3: go around impeaching people on webs of supposition like that.
27:45
Speaker 3: And the second issue is a more difficult constitutional one.
27:49
Speaker 3: We've only impeached one Supreme Court justice in our history,
27:53
Speaker 3: and he was acquitted of Samuel Chase in eighteen oh
27:55
Speaker 3: four eighteen oh five. And Chase was essentially an impeached
27:59
Speaker 3: for being a vocal Federalist and therefore an opponent of
28:04
Speaker 3: Thomas Jefferson's Republicans, and of saying and doing some things
28:08
Speaker 3: on the bench that suggested he had a very strong
28:11
Speaker 3: affinity for the Federalists. And he was essentially impeached for
28:14
Speaker 3: statements that he made from some rulings he made in
28:17
Speaker 3: some cases, but the real argument was that he was
28:20
Speaker 3: an ardent federalist and was letting that effect are his rulings,
28:24
Speaker 3: his statements, and he was acquitted by the Senate. And
28:27
Speaker 3: we've generally thought the meaning of that acquittal was that
28:31
Speaker 3: Supreme court justes and other judges should not be impeached
28:34
Speaker 3: for their opinions. Now, they certainly could be impeached if
28:39
Speaker 3: they were overtly basing their rulings on partisan political affinity,
28:46
Speaker 3: and there was they ruled for Republicans because their Republicans
28:49
Speaker 3: are against Democrats, because of Democrats. But there was no
28:52
Speaker 3: proof that that was true in just Jase's case, and
28:56
Speaker 3: the Senate finally concluded not going tompeach people just because,
29:01
Speaker 3: you know, of the other party were appointed by the
29:03
Speaker 3: other party. Indeed, there were arguments in that impeachment. One
29:06
Speaker 3: Center basically stood up and said, no, we we think
29:11
Speaker 3: and this is a Remember this is very early in
29:12
Speaker 3: the Republic, not quite twenty years after the Constitution has
29:16
Speaker 3: been ratified, and weren't quite sure how we were going
29:18
Speaker 3: to treat impeachments. But the congressman stands up and says, no,
29:23
Speaker 3: we think that impeachment is to be used for precisely
29:26
Speaker 3: this purpose. You know, you people have bad opinions, and
29:30
Speaker 3: we're going to get rid of you to put in
29:32
Speaker 3: your place. This is Jason, others like you, people who
29:35
Speaker 3: have good opinions. And that view was essentially rejected, and
29:40
Speaker 3: ever since we just don't have impeached justices for their opinions.
29:43
Speaker 3: Coming back to Justice Alido, you know, has he perhaps
29:48
Speaker 3: behaved intemperately at times? You bet, in my view, But
29:55
Speaker 3: you know, has he in any provable way acted? Can
30:01
Speaker 3: we prove that he ruled in a particular case based
30:05
Speaker 3: on his partisan political affinity rather than you know, he's
30:10
Speaker 3: genuinely held jurisprudential convictions? Well, I don't think so. And
30:15
Speaker 3: so I think the article against him is both factually
30:19
Speaker 3: weak because it's based on disputed facts, and I think
30:21
Speaker 3: it's constitutionally extremely extremely thin, if not non existent.
30:27
Speaker 2: So, with a Republican majority in the House, this impeachment effort,
30:32
Speaker 2: I mean, there's no chance that will even be voted on,
30:36
Speaker 2: let alone pass. So what's the point of doing this?
30:40
Speaker 3: Well, you know, I think this is this is a
30:44
Speaker 3: purely performative exercise, right because not only is the Republican
30:49
Speaker 3: House not going to impeach either Thomas or Alito, they're
30:54
Speaker 3: not even going to investigate the allegation. Now, I think that,
30:58
Speaker 3: you know, there may be time when it's clear to
31:02
Speaker 3: a majority of remembers the House that the Senate perhaps
31:06
Speaker 3: is not going to convict or is unlikely to convict
31:08
Speaker 3: on a particular set of impeachment allegations, but nonetheless makes
31:13
Speaker 3: a logical and constitutional sense to embark on an impeachment
31:18
Speaker 3: inquiry into the House because it gives you an opportunity
31:20
Speaker 3: to investigate, to bring forward facts about official wrongdoing. And
31:25
Speaker 3: I think that in essence the justification, and certainly for
31:28
Speaker 3: the first Trump engagement, where it was at least reasonably
31:32
Speaker 3: probable that the Senate would not convict, but the Democrats felt,
31:37
Speaker 3: at a minimum, we need to use the special powers
31:41
Speaker 3: of investigation that arise in an impeachment situation to unearth
31:45
Speaker 3: the facts regarding Trump's and connections with Ukraine and his
31:48
Speaker 3: effort to use Ukraine to secure good on his political
31:51
Speaker 3: pont I think that's arguably justifiable, even if you're not
31:55
Speaker 3: going to get a conviction in the end. But in
31:58
Speaker 3: this case, not only do we know that the Senate
32:01
Speaker 3: would never convict either Alito or Thomas, we know that
32:05
Speaker 3: the House is presently constituted isn't even going to open
32:09
Speaker 3: an investigation into these allegations. I think, particularly when the
32:14
Speaker 3: allegations are themselves I think constitutionally pretty weak. As I said,
32:18
Speaker 3: I think the Alito case is in the non existent
32:22
Speaker 3: constitutionally the case made against Thomas, particularly the first two
32:27
Speaker 3: articles I think are very very tho and the third
32:30
Speaker 3: article is borderline. I think it makes very very very
32:34
Speaker 3: little sense to launch into impeachments where you're not even
32:37
Speaker 3: getting an investigation. I personally, I disapprove of using a
32:44
Speaker 3: constitutional mechanism as serious as impeachment as a means of
32:50
Speaker 3: political signaling or it has no other function. I think
32:53
Speaker 3: that trivializes impeachment, and I think trivializing impeachment is itself dangerous,
33:00
Speaker 3: rapidly reaching that point if we haven't passed it in
33:03
Speaker 3: days gone by, certainly in the days of my relative youth,
33:07
Speaker 3: you know, somebody brought an impeachment allegation. You know that
33:10
Speaker 3: was serious business, and people who pay the content in
33:14
Speaker 3: national government picked up their ears and said, Mogley, if
33:17
Speaker 3: you know this, if somebody is seriously maintaining that this
33:21
Speaker 3: or that conduct by an officials impeachable, well that's something
33:24
Speaker 3: we ought to pay attention to. We ought at least
33:26
Speaker 3: listen to the to the case for impeachment, impeaching people
33:32
Speaker 3: or you know, filing impeachment resolutions when it can't accomplish anything.
33:36
Speaker 3: Not even getting an investigation seems to me a very
33:40
Speaker 3: bad idea. It just trivializes the mechanism of impeachment. It
33:46
Speaker 3: creates a situation where where nobody even cares, and I
33:50
Speaker 3: think that's bad. We've already gone a long distance to
33:53
Speaker 3: rendering impeachment effectively useless against official misconduct, and I think
33:59
Speaker 3: this kind of thing goes further in that direction.
34:02
Speaker 2: Thanks so much for joining us. That's Professor Frank Bowman
34:05
Speaker 2: of the University of Missouri Law School, and that's it
34:09
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
34:11
Speaker 2: can always get the latest legal news on our Bloomberg
34:14
Speaker 2: Law podcasts. You can find them on Apple Podcasts, Spotify,
34:18
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
34:23
Speaker 2: and remember to tune into The Bloomberg Law Show every
34:26
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,
34:30
Speaker 2: and you're listening to Bloomberg