On the campaign trail, Donald Trump promised his followers that if returned to the White House he would be their retribution—by which he meant he would be his own retribution: he would use the levers of government to retaliate against the people who tried in vain to hold him accountable for the crimes he committed during his first term.
Even before his inauguration, the process has begun. Last week, the Republican-led House of Representatives released a report claiming that former Representative Liz Cheney—who, at the cost of her own political future, had the courage to co-chair an investigation into President Trump’s role in fomenting and failing to respond to the insurrection of January 6, 2021—broke “numerous federal laws” for which she should face investigation and possible prosecution.
Cheney was not the only person on Trump’s enemies list who was called out last week. By a 2-1 margin, a panel of the Court of Appeals of Georgia ruled that Atlanta District Attorney Fani Willis could no longer serve as the lead prosecutor in the case against Trump and his alleged co-conspirators for trying to change the result of the state’s 2020 presidential election. In principle, after Trump leaves office in 2029, he could still face the charges stemming from his effort to pressure Georgia’s governor to “find” enough votes for him to win in 2020. But in the meantime, Willis has been publicly humiliated and removed from the case for showing what was undoubtedly poor judgment by hiring a special counsel with whom she had a romantic relationship, while Trump pays no price for his efforts to replace American constitutional democracy with a cult of personality centered on him.
Dispiriting as the blows to Cheney and Willis were—and they were plenty dispiriting—in the balance of this column, I shall focus on a third instance of the justice system taking aim at someone who objected to bad behavior even as the principal escaped repercussions: also last week, Senior Federal District Judge Michael A. Ponsor was reprimanded by Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, who had been tasked with evaluating an ethics complaint.
Judge Ponsor’s sin? In May, he wrote a guest essay in The New York Times criticizing Justice Samuel Alito for the flying of an upside-down United States flag at his Virginia home and an “Appeal to Heaven” flag at his vacation house at the Jersey shore. Both flags were widely understood to express support for the big lie that Trump, not Joe Biden, was the true winner of the 2020 election.
Relative to the wave of criticism (including from me) of Justice Alito for creating at least the appearance of partisan partiality, Judge Ponsor’s essay was quite mild. He did not claim that Justice Alito violated any laws. He did not even say that Justice Alito’s conduct would have violated the code of judicial ethics that applies to lower court judges if it applied to Supreme Court Justices. Rather, Judge Ponsor made the obviously correct point that Justice Alito should have realized that flying the flags was “improper” and “dumb” because it predictably would be “viewed by a great many people as a banner of allegiance on partisan issues that are or could be before the court.” He further explained why Justice Alito’s explanation—that his wife, not he, chose to fly the flags—was inadequate, given that a jurist presumably can come to an agreement with their spouse about public-facing political activities.
Nowhere in Judge Diaz’s reprimand order does he acknowledge that Judge Ponsor’s criticism of Justice Alito was well warranted by the facts. Rather, Judge Diaz parses the canons of judicial ethics to conclude that Judge Ponsor’s New York Times essay impermissibly “diminish[ed] the public’s confidence in the integrity and independence of the judiciary.” Yet, it is difficult to see how the essay did that—except to the extent that it repeated facts that had already been widely reported.
In other words, the diminution in the public’s confidence in the integrity and independence of the judiciary was the result of what Justice Alito did and did not do: At a time when the Supreme Court had pending potential cases arising out of the January 6, 2021 insurrection, Justice Alito allowed flags to be flown at his home indicating support for the “stop the steal” movement that motivated the insurrectionists.
To be sure, one might object that characterizing Justice Alito’s actions that way denies Mrs. Alito’s agency. After all, and thankfully, the law no longer treats wives as the property of their husbands. Yet, as I explained on my blog in June, Justice Alito took none of the measures the law does allow one to take to disassociate from a spouse’s speech.
Moreover, in chastising Judge Ponsor, Judge Diaz did not say that Judge Ponsor had falsely attributed Mrs. Alito’s speech to Justice Alito. The unmistakable import of Judge Diaz’s reprimand is that Judge Ponsor breached the judicial code of ethics by stating an obvious fact. It is as though the The Emperor’s New Clothes concludes with the boy who commented on the emperor’s nakedness being sent to his room without supper and forced to write a self-reproaching essay.
That comparison is more apt than readers might realize. In response to Judge Diaz’s communications, Judge Ponsor engaged in what Judge Diaz and the relevant rules call “voluntary self-correction.” In particular, Judge Ponsor penned an “unreserved apology” that recognized the “gravity of [his] lapse” and promised “to scrupulously avoid any such transgression in the future.” The letter of apology, which is appended to Judge Diaz’s order of reprimand, reads like the sorts of forced confessions extracted during the show trials of Stalin’s 1930s purges or, more recently, from Iranians who dared to protest the regime’s cruelty.
Meanwhile, Justice Alito has not apologized or admitted to even the slightest error of judgment. Nor has President-elect Trump or his numerous supporters—except some of those who were convicted of crimes for their participation in the insurrection and apologized in the apparent hope of reducing their sentences.
And what about the 147 Republican members of Congress who, just hours after the Capitol building was cleared of rioters on January 6, 2021, voted to reject Pennsylvania’s Electoral College certification based on the same big lie that led Mrs. Alito to fly her flags and Fani Willis to indict the stop-the-steal movement’s ringleaders? They too have expressed nothing resembling remorse. Indeed, the House report that calls for prosecution of Liz Cheney bears the signature of one of those unrepentant 147: Georgia Republican Barry Loudermilk, the Chairman of the House Subcommittee on Oversight of the Committee on House Administration.
