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By Robert A. Vella

In 2019, Russia’s “President” Vladimir Putin reiterated his assertion that western liberal democracy was “obsolete.”  Although, the Russian strongman’s rhetoric obviously reflects his now fading hopes (see:  Putin’s Kharkiv disaster is his biggest challenge yet. It has left him with few options) to restore the totalitarianism of the former Soviet Union by undermining the United States and its allies across the globe, there is some truth to be found in his statement.

The U.S. Constitution, as well as the various institutions built upon it, are indeed old and outdated.  America’s Founding Fathers did anticipate that these foundations must evolve with time, and that is why they included mechanisms (e.g. constitutional amendment procedures) to allow for modification.  Unfortunately, those mechanisms have proved inadequate to keep pace with the rate of change;  and, furthermore, it has been hindered by a fatal flaw in the design.  In their attempt to find a stable balance between the impulsiveness of majority rule (i.e. direct democracy) and the tyranny of minority rule (i.e. various forms of authoritarianism), they relied upon a consensus of good faith actors within the three branches of government (i.e. legislative, executive, and judicial) which would hopefully keep the nation on an even keel.

But, what happens when such a consensus is feeble at best or virtually nonexistent at worst?  What happens when bad faith actors of a determined minority seek to subvert the system and to seize control of it?  What mechanisms would counter a political party’s attempts to deny some (or even all) citizens of their right to vote or to gerrymander legislative districts in their favor?  What mechanisms would stop a dangerously rogue administration of a President or Governor?  What mechanisms would prevent the infiltration of the federal or a state judiciary with ideologically biased judges or perhaps clandestine political activists posing as legitimate jurists?

What the Founders constructed was a system of checks and balances which would theoretically pit the other two branches of government against any branch which acted unconstitutionally.  The U.S. Congress could impeach and remove a President (i.e. any “Civil Officer” – including federal judges – for committing “Treason, Bribery, or other high Crimes and Misdemeanors”), override a presidential veto of the new bills which it had sent to him/her to sign into law, and it can change the structure of federal courts (e.g. the number of Justices on the U.S. Supreme Court) as well as conduct investigations into the Judicial Branch’s self-discipline of individual judges.  The President can veto bills passed by Congress, has the sole authority to nominate judges to the federal judiciary, and is tasked with enforcing the nation’s laws.  The federal courts hold the greatest responsibility of interpreting the constitutionality and legality of all official acts of government under its purview.  Likewise, similar mechanisms exist at the state level.

However, all this (and more) depends upon that “consensus of good faith” I highlighted above.  If the country is highly polarized along political, ideological, and/or cultural lines (as it was in the prelude to the American Civil War, during the Jim Crow Era, and as it is now), there can be no consensus.  When two or more opposing factions engage in escalatory conflicts which become increasingly desperate and which eventually cast aside any pretense of civil behavior, “victory” becomes the only goal… at all costs.  All three branches of government become the target of this vitriol with the legislative branch being the most vulnerable (because of smaller district and state electorates), followed by the executive branch (state and national electorates), and then the judicial branch being the least vulnerable (non-elected appointments or various electorates at the state level).

The United States has certainly had presidents and federal judges, for example, who had committed impeachable offenses, but have any been actually convicted and removed from office?  Of the three presidents impeached (Andrew Johnson in 1868, Bill Clinton in 1998, Donald Trump in 2019 and again in 2021), none were removed (note:  Richard Nixon probably would have been removed in 1974, but he resigned beforehand).  Of the fifteen federal judges impeached (including one Supreme Court Justice:  Samuel Chase in 1804 and acquitted in 1805), eight were removed (notes:  three resigned before the outcome of the trial;  and Supreme Court Justice Abe Fortas resigned in 1969 under the threat of impeachment).  Considering that nearly 92% of all federal criminal defendants (i.e. ordinary citizens) either plead guilty or are convicted in a trial (see:  Only 2% of federal criminal defendants go to trial, and most who do are found guilty), this record of holding top government officials accountable for their corrupt/criminal acts must be seen as ineffectual.

It is no wonder, then, that presidents like the explosive Andrew Jackson and the megalomaniacal Donald Trump saw themselves as above the law and as unbound by moral or ethical norms.  It is also not surprising that supreme court justice nominees such as Clarence Thomas and Brett Kavanaugh, who were both marred by very serious and credible sexual misconduct allegations, still passed the supposedly rigorous confirmation process in the U.S. Senate.  Obviously, the Founding Fathers’ checks-and-balances failed in these cases and in many more throughout the life of the republic.  It is apparent that the hierarchical status of privilege afforded to all the autocrats of history and to which the American colonists had rebelled against in 1776, had persisted into the new nation;  not because it was ordained into the U.S. Constitution, but because it was assumed by those who rose to power for the sole purpose of acquiring power.  In other words, there have never been enough good faith actors in government to stop the continual onslaught of bad faith actors.

The hierarchical status of privilege has been publicly exposed recently in a high-profile district court decision by a young inexperienced federal judge in Florida who had been appointed in the waning days of the Trump presidency.  Aileen Cannon was the choice of Donald Trump’s “judge shopping” to disrupt a Department of Justice (DOJ) criminal investigation into the moving of classified and unclassified government documents (including top secret national security information) to his Mar-a-Lago residential resort in Palm Beach, Florida.  That investigation, prompted by notification from the National Archives concerning the illegal seizure of the documents, expanded into obstruction and espionage probes that compelled the DOJ to obtain a court-ordered search warrant of the resort which the FBI executed on August 8, 2022.  On September 5th (Labor Day), in response to Trump’s request for the appointment of a special master who would review the evidence and then could grant him personal ownership of the documents (a profoundly absurd legal request because all such documents are the legal custody of the U.S. government on behalf of the American people, and needless to say because Trump did not inform the court – by the September 9th and 12th filing deadlines – that he had definitively declassified those documents while he was President), Judge Cannon issued the most erroneous and biased court ruling I have ever witnessed (see:  In ruling for Trump, low-profile judge Aileen Cannon invites scrutiny).  Most egregiously, she ordered the DOJ to halt its criminal investigation because it would cause “reputational harm” to Trump as a public figure (the DOJ is currently challenging this ruling on the grounds that its investigation is imperative for assessing the potential damage to national security, and has informed the judge that it will appeal the ruling if she doesn’t amend it by September 15th).

Reputational harm?  Did Judge Cannon assert that all public figures are immune from criminal investigation or just specifically Donald Trump?  Regardless of how she might attempt to answer that question, or respond to questions concerning her apparent bias and conflicts of interest, her ruling is an open admission that some people have privilege while other people do not.  This is a clear violation of the Equal Protection Clause of the Fourteenth Amendment which requires that all citizens be treated equally under the law:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Ask yourself if it was you who had seized those documents and had deceivingly tried to hide them from the government.  Yes, you would be in jail right now awaiting a trial in which you would surely be convicted.  Would you be able to go judge shopping?  No, certainly not.  Would you be granted a special master?  No, absolutely not.

If some people are above the law, then the remainder of people are below the law;  and that, dear readers, is authoritarianism.  It is antithetical to democracy and to a republic.

∞

Now that we’ve identified the judicial branch of government as the last line of defense against authoritarianism, let’s examine the shaky foundation of America’s legal system.  There are three levels of mechanisms intended to hold judges accountable to their oaths of office.  We will focus on the federal judiciary for conciseness.

The first level is the Code of Conduct for United States Judges.  I’ve excerpted here some relevant texts:

Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Conversely, violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.

The Canons are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances. The Code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions.

[…]

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.

[…]

(4) A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law. Except as set out below, a judge should not initiate, permit, or consider ex parte (i.e. with respect to or in the interests of one side only or of an interested outside party) communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested.

[…]

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…

[…]

A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.

Canon 3A(5). In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases to reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.

[…]

Canon 3B(6). Public confidence in the integrity and impartiality of the judiciary is promoted when judges take appropriate action based on reliable information of likely misconduct. Appropriate action depends on the circumstances, but the overarching goal of such action should be to prevent harm to those affected by the misconduct and to prevent recurrence.

[…]

Canon 3C. Recusal considerations applicable to a judge’s spouse should also be considered with respect to a person other than a spouse with whom the judge maintains both a household and an intimate relationship.

[…]

Canon 5: A Judge Should Refrain from Political Activity

As you can see, the Code of Conduct is wholly dependent upon self-discipline which is no deterrent to judicial bias regardless of its conscious or subconscious intent or its consequence from legal incompetence.

The second level is a Complaint of Judicial Misconduct or Disability:

Congress has created a procedure that permits any person to file a complaint in the courts about the behavior of federal judges, but not about the decisions federal judges make in deciding cases. Pursuant to Rule 40.3 of the Rules of the United States Court of Federal Claims, complaints may be filed against “any judge of the court who has:

1. engaged in conduct prejudicial to the effective and expeditious administration of the business of the court; or
2. is unable to discharge all duties of the office by reason of mental or physical disability.”

Rule 40.3 specifies that such complaints are governed by the Rules for Judicial-Conduct and Judicial- Disability Proceedings.

Almost all complaints filed in this court in recent years have been dismissed because they do not follow the law regarding such complaints. If your complaint falls within any of the categories listed below, it must be dismissed:

1. complaints about judges’ decisions;
2. complaints with no evidence to support them; or
3. complaints against judges sitting on courts other than the United States Court of Federal Claims.

If you are a litigant in a case before this court and believe the judge made a wrong decision—regarding either the facts of the case or the litigation procedure—you may not use the Rules for Judicial-Conduct and Judicial-Disability Proceedings to complain about the decision. An attorney can explain the rights you have as a litigant to seek review of a judicial decision. Litigants wishing to complain about judges sitting in other federal or state courts should contact those courts for more information about the complaint procedures in those courts.

A complaint is evaluated by a Judicial Council:

Judicial councils are panels of the United States federal courts that are charged with making “necessary and appropriate orders for the effective and expeditious administration of justice” within their circuits.[1] Among their responsibilities is judicial discipline, the formulation of circuit policy, the implementation of policy directives received from the Judicial Conference of the United States, and the annual submission of a report to the Administrative Office of the United States Courts on the number and nature of orders entered during the year that relate to judicial misconduct.[2] Each US judicial circuit has a judicial council, which consists of the chief judge of the circuit and an equal number of circuit judges and district judges of the circuit.[3]

The judicial discipline process of US federal judges is initiated by the filing of a complaint by any person alleging that a judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of the office by reason of mental or physical disability.”[4] The chief judge of the circuit has the power to dismiss or conclude the proceeding, or appoint a special committee to investigate the facts and allegations in the complaint. The committee is composed of the chief judge and an equal number of circuit judges and district judges, whom are appointed by the chief judge. The committee must conduct such investigation as it finds necessary and then expeditiously file a comprehensive written report of its investigation with the judicial council of the circuit involved. Upon receipt of such a report, the judicial council of the circuit involved may conduct any additional investigation it deems necessary, and it may dismiss the complaint.[5]

If a judge who is the subject of a complaint holds his or her office during good behavior, action taken by the judicial council may include certifying disability of the judge. The judicial council may also, in its discretion, refer any complaint under 28 U.S.C. § 351, along with the record of any associated proceedings and its recommendations for appropriate action, to the Judicial Conference. The Judicial Conference may exercise its authority under the judicial discipline provisions as a conference, or through a standing committee appointed by the Chief Justice.

Obviously, the complaint process is dependent upon judges disciplining other judges;  and, you would be right in presuming that it is both a rare occurrence and mildly administered.

The third level is judicial discipline (e.g. revoking a judge’s law license) by state Bar Associations which work in concert with Judicial Councils;  however, this does not apply to federal judges.  See:

Model Rules for Judicial Disciplinary Enforcement

State Bar Disciplinary Rules as Applied to Federal Government Attorneys

WHO MAY DISCIPLINE OR REMOVE FEDERAL JUDGES? – A CONSTITUTIONAL ANALYSIS

The last link above provides a historical examination of the pros and cons of disciplining federal judges.  Admittedly, there are no easy solutions;  but, considering the ineffectiveness of judicial self-discipline and complaint-triggered discipline by judicial councils, the problem of judicial bias remains too serious to ignore.  Aberrant court rulings like the one Aileen Cannon issued on September 5, 2022 simply cannot be allowed to stand without official reprimand.  Impeachment is not the solution because it is practically impossible when good faith consensus doesn’t exist, and because it is a political (i.e. subjective rather than objective) mechanism which could not be relied upon to referee judges by appropriate standards of conduct.  Furthermore, judicial independence – while absolutely necessary in the perpetual pursuit of true justice – cannot be so construed as to legitimize judicial bias.

Judge Cannon’s ruling has publicly exposed the unstable foundation of America’s legal system.  The judicial branch of government, which is built upon it, has been badly shaken.  If it collapses, the last line of defense of the United States as a democratic constitutional republic will crumble before a tyrannical onslaught of authoritarianism.