“You Can’t Investigate Me, I Quit” or “I’ve Been Promoted”: Should Federal Courts Continue Misconduct Investigations of Former Judges?


Last October, the New York Times published extensive findings of a detailed investigation into how in the 1990s Fred Trump and his children enriched themselves through what the article called “dubious tax schemes” and “outright fraud.” Because one of Fred’s children is the current president, the Times story ought to have led to bipartisan demands for a public reckoning. That did not happen, however. The Times story made a splash for about a day, before it was pushed down the memory hole by some new outrage from the Tweeter in Chief, all while the president and his supporters dismissed the extensive evidence as fake news.

But while the Times story failed to bring down Donald Trump, it did have a collateral consequence. One of Fred Trump’s other children is Maryanne Trump Barry, who, since 1983, has been a federal judge. President Reagan named her to the federal district court and President Clinton elevated her to the US Court of Appeals for the Third Circuit. She took senior status in 2011 and inactive senior status in 2017. However, she was still a federal judge when the Times story broke, which led four people to file a complaint of misconduct; to avoid a conflict of interest, Chief Justice Roberts assigned the investigation to the Second Circuit; then, Judge Barry fully retired, and earlier this month the Judicial Council of the Second Circuit accordingly dismissed the complaint without considering the merits. The key statute, the Council said, governs the conduct of current judges, and thus a “former judge does not fall within the scope of persons who can be investigated under the Act.”

The Second Circuit Judicial Council’s ruling closely tracks two similar dismissals in recent high-profile cases.

In late 2017, the Chief Justice assigned to the Second Circuit responsibility for investigating allegations of sexual harassment and related misconduct by Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit. Despite initially mounting a vigorous public defense, Judge Kozinski resigned. In an order that presaged its decision in Judge Barry’s case, the Judicial Council of the Second Circuit then declared itself without authority to proceed further.

Likewise, numerous complainants charged that Brett Kavanaugh testified falsely and displayed inappropriate partisan bias during his Supreme Court confirmation hearing. At the time, Kavanaugh was a judge on the US Court of Appeals for the DC Circuit. Chief Justice Roberts assigned the investigation to the Judicial Council of the Tenth Circuit, but in December of last year, that body concluded without addressing the merits. Like the Judicial Council of the Second Circuit in the Kozinski and Barry cases, it too found that it could not investigate Kavanaugh, because, following his confirmation, he was a justice, not a judge.

Did the Judicial Councils Misread the Statute?

The core argument of statutory interpretation offered in the Kozinski, Barry, and Kavanaugh cases is arguably mistaken.

The statute defines a “judge” as “a circuit judge, district judge, bankruptcy judge, or magistrate judge.” The Tenth Circuit Judicial Council was surely correct that this language does not include a justice. So too, the Second Circuit Judicial Council was correct that a person who has fully retired from a judgeship is no longer a judge (even if he or she still uses the title as an honorific, as retired judges often do).

But it is hardly obvious from the statutory language that to qualify as a judge for definitional purposes, one must be a judge when the alleged misconduct is adjudicated, rather than when it occurs. After all, the statute allows the filing of complaints against “a judge” who “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” Kozinski, Kavanaugh, and Barry were all federal appeals court judges—and thus squarely within the statutory definition—when the alleged misconduct occurred and when the complaints were filed. Why shouldn’t that be enough?

The Ongoing Relevance of a Former Judge’s Conduct

In the Kozinski case, the Second Circuit Judicial Council cited not just the statutory language but also some prior precedents and an official comment on the applicable Rules for Judicial Conduct and Judicial Disability Proceedings. Perhaps those sources, taken together, justify the bottom line in the three cases under the law as it stands. However, if so, the law ought to change.

To be sure, there are contexts in which an institution properly exercises investigatory authority over persons only during their period of affiliation. Consider a mundane example. Suppose Jane joins a community swimming pool. As a condition of remaining a member, Jane agrees to abide by the pool rules. One such rule forbids the bringing of glass bottles to the pool area (because a glass bottle could break and then injure one of the many barefoot swimmers). A lifeguard observes Jane with a glass bottle and reminds her of the rule, but Jane repeatedly violates it. The lifeguard informs the pool’s membership committee, which sends Jane a notice that it is opening an investigation into whether she broke the no-glass-bottles rule. Jane responds by permanently terminating her pool membership. At that point, it would be sensible for the membership committee to end the investigation without making a determination whether Jane broke the rule. Luckily, no one was injured by Jane’s prior flouting of the rule, and she poses no ongoing threat. Further investigation would be a waste of time.

Is Jane’s case like a complaint against a judge alleged to have “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts”? In some sense yes. After all, one concern about the latter sort of complaint is that the judge will continue to misbehave as a judge on the same court. Leaving (whether via resignation or promotion) fully addresses that concern.

However, in another sense, violating ethical standards as a judge differs from violating pool rules. The courts, the legal system, and the public have an interest in knowing whether past misconduct undermined impartial justice.

Moreover, a full investigation of someone who is no longer a judge (or no longer a judge on a covered court) may have implications for judges who continue to serve. For example, when the allegations against Kozinski were made public, many people described the conduct alleged as an “open secret.” If so, judges who continue to serve on the Ninth Circuit likely knew about but did not take sufficient steps to report or stop that conduct. A full investigation by the Judicial Council could reveal the extent, if any, to which currently sitting judges played a role in covering up misconduct by a colleague and could thus serve as a basis for reforms that improve the system for reporting and responding to such misconduct.

The Judicial Councils should not have construed their statutory mandate as narrowly as they did in the Kozinski, Kavanaugh, and Barry cases. Now that they have, Congress should fix the problem by clarifying that a Judicial Council retains the authority to continue a misconduct investigation of a judge alleged to have acted improperly, even after he or she is no longer on the court where the alleged misconduct occurred.

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