Federal judges have a way to make investigations disappear

By Mark Sherman
Associated Press

WASHINGTON (AP) — The fastest way for federal judges facing investigation by their peers to make an inquiry go away is to utter two words: “I quit.”

That’s how appellate judges Maryanne Trump Barry and Alex Kozinski ended investigations into complaints that Barry participated in fraudulent tax schemes and Kozinski sexually harassed women. Barry is the older sister of President Donald Trump.

And because they’re older than 65, and with more than 15 years as federal judges, Barry and Kozinski can collect their annual salary, roughly $220,000 when they retired, for the rest of their lives.
Panels of judges across the country have concluded that they have no authority to investigate a judge who has stepped down from the bench.

Similar reasoning led judges to dismiss complaints against Supreme Court Justice Brett Kavanaugh stemming from his confirmation hearing last year, while he was an appeals court judge.

The complaints challenge the accuracy of his testimony, including his angry denial of an allegation he sexually assaulted a woman when they were teenagers.

Supreme Court justices are not covered by the 1980 law governing judicial misconduct. The Kavanaugh dismissals are being appealed.

The dismissals have led to calls to change the law to bolster faith in the judiciary and provide a full accounting that would either show complaints to be valid or poke holes in them. Other lawyers believe that the law already allows investigations to continue and that judges are misreading it.

Gabe Roth, head of the court transparency group Fix The Court, said he is trying to persuade members of Congress to take on the issue.

“The idea that there’s a way to game the system doesn’t give you faith in the impartiality of the judiciary,” Roth said. “It’s the opposite of what we expect in our judges and justices.”

But Arthur Hellman, an expert on judicial ethics at the University of Pittsburgh, said that often the most pressing concern is to get a judge out of the courtroom. The current arrangement serves that purpose, Hellman said.

“It’s understandable that people are unhappy when they see a resignation that leaves the matter really unresolved in many ways, or at least without an investigation that tells us what happened,” Hellman said. “But in many of the instances, the present system ... does have an important virtue in that it gets judges in whom the public has lost confidence off the bench.”

Allowing investigations to continue after retirement could create a perverse incentive, he said.

“If there’s going to be an investigation anyway, why not fight it through to the end?” Hellman said.

Kozinski, a prominent judge who served more than 30 years on the 9th U.S. Circuit Court of Appeals, has said he initially resolved to do just that after several female former law clerks and colleagues accused him of sexual misconduct that included touching, inappropriate sexual comments and forced viewings of pornography in his chambers. But he retired abruptly, after an inquiry was launched and more women came forward with accusations. His retirement ended the investigation.

Barry’s retirement in February ended her 36-year career as a federal judge and the inquiry into complaints that were based on a New York Times report that she participated in Trump family schemes to dodge taxes.

An April 1 order from a panel of federal judges looking into the complaints said the complaint process was meant to deal with problems that could interfere with the “effective and expeditious” administration of court business.

Barry’s retirement means she can no longer perform any judicial duties and thus can no longer be investigated, the order said. She had already stopped hearing cases in 2017, when her brother became president.

Both Barry and Kozinski were old enough and experienced enough to retire with their full salary.

Richard Cebull, at one time the chief federal district judge in Montana, was less than a year shy of his judicial pension when the Great Falls Tribune in 2012 revealed that Cebull had sent a racist joke involving President Barack Obama from his official email account.

The outcry was immediate, and Cebull was among those requesting an investigation, but the judge waited more than a year before he retired, by which time he had become eligible to receive his judicial salary for life.

An investigation by judges in the Western U.S., led by Kozinski, found that Cebull had sent hundreds of inappropriate emails, dealing with race, religion, gender and sexual orientation.  “Whether cast as jokes or serious commentary, the emails showed disdain and disrespect for African Americans, Native Americans and Hispanics, especially those who are not in the United States legally,” the judges wrote. Other emails “showed disdain for certain faiths” or “were disparaging of women,” the judges wrote.

Even though the investigation had been completed, the investigative panel initially decided to keep the results secret, reasoning that Cebull’s retirement was the end of the matter.

But the ethics committee of the Judicial Conference, the governing body for the federal judiciary, ordered the results made public.

Barry, Cebull and Kozinski did not respond to requests for comment.

Among those who complained about Cebull and then objected to the decision not to make the results public was another federal judge. Judge Theodore McKee of the 3rd U.S. Circuit Court of Appeals in Philadelphia was also a longtime colleague of Barry’s.

McKee said he was satisfied with the outcome in Cebull’s case because the matter was investigated and the public could see the results. But McKee said he is opposed to any changes in the misconduct law.

“In this day and age, even with the best of intentions I get incredibly nervous with tinkering around with anything that could be deemed to be interference with judicial independence,” McKee said.

But Jeremy Bates, a New York lawyer who filed a complaint against Kavanaugh, said judges are mistakenly saying they have no authority to investigate when a judge retires or, in Kavanaugh’s case, is promoted. Bates is appealing the dismissal of his complaint to the main governing body of the federal judiciary. Bates argues that in many areas of the law, courts look at the facts at the time a lawsuit is filed to decide if they have the authority to hear it. Lawyers can’t avoid misconduct investigations merely by resigning, and there’s no reason judges should, either, Bates wrote.

In the Kavanaugh, Barry and Kozinski dismissals, the public “sees a pattern of high-ranking federal judges (and their partisans) evading misconduct complaints by altering the jurisdictional facts,” Bates wrote in an April 19 letter to the Judicial Conference’s committee on misconduct. Investigating a complaint even if a judge’s status changes would “prevent such evasions and abuses,” Bates wrote. The National Law Journal first reported appeals by Bates and others.

Cornell law professor Michael Dorf also has written that the investigating judges took too narrow a view of their authority. A full investigation also would reveal if other judges played any role in covering up misconduct by one of their peers. He noted in a posting on the justia.com website that many people described Kozinski’s alleged conduct toward women as an open secret.