In my last post on the VC, I would like to say a bit about so-called "hate speech" (which I address in the last chapter of my book, arguing that it should be constitutionally protected in public schools). I say "so-called," because it might be better to drop the term "hate speech" insofar as it implies an extreme aversion to a particular group. However, in this post, I will use the term for convenience.
No single legal definition of hate speech exists. The term is notoriously difficult to define with sufficient precision. As a result, those who support anti-hate speech codes on college campuses, for example, must say more about what to do about invariable vagueness and overbreadth problems than they usually do. That hate speech is constitutionally protected in the U.S. has not stopped university administrators to try to make it much harder for students to express certain ideas with impunity.
I doubt that any anti-hate speech code at a public school could be formulated and applied in a way that would not ban or chill speech that ought to be constitutionally protected. Such codes would be ripe for overreach and misapplication, apart from allowing viewpoint discrimination. It is important to understand that even if a particular word—like a racial slur—has little, if any free speech value most of the time, the fundamental problem is that if the government can ban that word, then it also has the authority to ban other words, regardless of the context and the intent of the speaker or writer.
In January 1968, North Korea chased down and captured the U.S.S. Pueblo in international waters, killing one of the ship's crew and taking the rest hostage. For the next eleven months, North Korea beat, starved, interrogated, and tortured the survivors to extract false confessions from them. Before the year was up, North Korea got the admission and the apology that it wanted from the United States for supposedly violating North Korean territorial waters. And the hostages, having served their purpose, were released.
This case is the latest of several in which some of the Pueblo's crew members, their families, and their estates sued North Korea under the Foreign Sovereign Immunities Act and state tort law. North Korea failed to appear, and Plaintiffs moved for default judgment. For the reasons below, the Court will grant their motion and award long-overdue compensation to these victims of state-sponsored terrorism.
As to the statute of limitations, the opinion says this:
From H.C. v. Contreras, decided yesterday by California Court of Appeal Justice Mark Snauffer, joined by Justices Bert Levy and Donald Franson:
Bethany G. sought a protective order protecting H. C., her minor son, from H. C.'s father, Rudy C. Numerous witnesses testified at a hotly contested hearing after which the parties filed closing briefs. Rudy's brief, submitted by counsel, contained fictitious caselaw and misstated the law. Counsel for Bethany directly and swiftly pointed the errors out to the trial court.
The trial court declined to issue the requested order, but its ruling erroneously relied on a nonexistent case and a serious legal misstatement—the very same shortcomings Bethany had already noted. As explained below, we reverse for further proceedings….
After the evidence was presented, but before the trial court ruled, Rudy's counsel filed a closing brief. Most pertinent here, the brief contains the following portions:
The event is free, but you need to register at the event page. From the page:
On June 2 at the Library of Congress, Eugene Volokh, one of the country's preeminent First Amendment scholars and a Federalist Society member; Emerson Sykes, a staff attorney at the ACLU who focuses on free speech; and Mary Anne Franks, professor at the George Washington University Law School and a leading thinker on the relationship between free expression and equality—in conversation with moderator David Lat, founder of Above the Law and Original Jurisdiction—will dig into the questions that the headlines have missed.
If you're in D.C. Tuesday, please do come by; should be a lot of fun.
Thirty-five retired federal judges ask the court to re-open Trump's case against the IRS because the dismissal of the claims constitutes, put simply, a fraud.
Following up my earlier post about the truly outrageous so-called "Settlement Agreement" between the IRS and our President, thirty-five (!) retired federal judges have submitted a "Motion for Relief from Judgment or Order," calling that Agreement "the product of collusion and a fraud on the Court." Accordingly, they ask the Court to use its power under FRCP 60 to set aside its earlier judgment dismissing the case, re-open the case, and "commence an inquiry into whether the Court was deceived, including with respect to the existence of an underlying case or controversy and any purported arms-length negotiations undertaken to resolve it."
The purported "settlement" that the parties never placed before this Court raises profound questions about the parties' candor toward the Court and manipulation of the judicial system, which threatens to undermine confidence in the administration of justice. As former judges, Movants have an interest in bringing to the Court's attention these concerns and the availability of relief under Rule 60 of the Federal Rules of Civil Procedure, which allows the Court to set aside the judgment and reopen the case. . . .
The Court was deceived. Despite Plaintiffs not having mentioned any settlement in their Notice, the Department of Justice ("DOJ") publicly announced a "settlement" of this action shortly after Plaintiffs filed their dismissal. That "settlement" commandeers the contrived sum of $1.776 billion from the United States Treasury, to be handed out to recipients chosen by a commission effectively controlled by the President. The DOJ is calling this the "Anti-Weaponization Fund." The day after the "settlement" containing the Anti-Weaponization Fund was announced, the DOJ announced that it had subsequently agreed to release "any and all claims . . . whether presently known or unknown, that—as of the Effective Date of the Settlement Agreement—have been or could have been asserted by [the United States] against any of the Plaintiffs or related or affiliated individuals . . . or parties . . . by reason of, with respect to, in connection with, or which arise out of . . . any matters currently pending or that could be pending . . . before Defendants or other agencies or departments." The plain language of this extremely broad provision sweeps in Internal Revenue Service ("IRS") audits of Plaintiffs' tax returns and all other claims the United States might have against Plaintiffs—extraordinary benefits for which no consideration was provided to the government.
Movants submit that this "settlement" is a product of collusion and is itself a fraud on the Court. But the Court need not decide that ultimate issue now. At this juncture, Movants request only that the Court exercise its powers under Rule 60 to set aside its order ending the case based upon Plaintiffs' voluntary dismissal. That will allow the Court to commence an inquiry into commence an inquiry into whether the Court was deceived, including with respect to the existence of an underlying case or controversy and any purported arms-length negotiations undertaken to resolve it.
As set forth below, this Court has the power under Rule 60 to determine whether there has been a "corruption of the judicial process itself," and may set aside a judgment and reopen a case under Rule 60(d)(3), as well as other subsections of Rule 60, whether by this motion or sua sponte. Doing so will allow judicial review of the extraordinary—and historically unprecedented—circumstances presented by this litigation and by the collusive "settlement" that invokes this litigation as the legal justification for its terms. [Emphases not really necessary, but added anyway]
To be continued (I hope). If this "Settlement" is allowed to stand, we have truly lost our way.
A white non-Jewish male sues the University of Pennsylvania for denying him admission to its Wharton business school master's program because he is not Jewish…. He claims widespread animus in the business community to non-Jewish men and disclosing his name will subject him to physical harm because of "Jewish agencies" ability to harm non-Jewish men. He does not show reasonable fear of severe harm resulting from litigating without a pseudonym. And even if he did, his reasonable fear of severe harm does not outweigh the public's interest in open litigation examining his claims an internationally known business school denies admission of white men because they are not Jewish….
Mr. Doe identifies three harms if he discloses his name: (1) "permanent professional disbarment"; (2) "social stigma"; and (3) "threat of physical violence." Mr. Doe claims in his unidentified "industry," the human resources department are "led and disproportionately staffed by Jewish women" who "already discriminate against non-Jewish White males such as [himself.]" He alleges twenty-five of his co-workers with "Jewish names" received early promotions.
He further argues "many high level managers at large employers have publicly stated their organizations [sic] policies prohibit the hiring of White males;" "some" of these unidentified employers "implement policies" to allow for the hiring of a white male only if an "'exception' were granted," and to Mr. Doe's knowledge these "exceptions" are "given exclusively to Jews;" and the "willingness of [Human Relations] Jews to discriminate against non-Jewish White males" makes it reasonable to conclude he "would be completely debarred from traditional employment" if his name is revealed in his lawsuit against the University for "favoring treatment of Jews" in admissions. Mr. Doe also alleges he "considered establishing his own firm as a work-around to discrimination," but he would need an investment from venture capitalists which are "run by [Venture Capitalist] Jews" who "usually don't invest in firms owned by non-Jewish White males."
Mr. Doe suggests a threat of physical violence to him because Israel's intelligence agency Mossad murdered President John F. Kennedy nearly sixty-three years ago (and "possibly [President Kennedy's] family members") to obstruct President Kennedy's opposition to the interests of "Jewish Supremacists." He claims Mossad is "still active and apparently very powerful" in the United States because of some nebulous connection to the Jeffrey Epstein scandal. Mr. Doe argues litigating under a pseudonym would deter "Jewish agencies" from "murdering" him and he "may have already survived an assassination attempt" through a romantic liaison with a Jewish woman who allegedly attempted to poison him….
Bloomberg Law confirmed what we already knew: Judge Betsy is Judge Ross (you see what I did there).
Eleanor Ross is the federal district court judge who was subject to a private reprimand for having sex with a police officer in chambers in earshot of law clerks, according to a person familiar with the situation.
Now, she will face the consequences the federal judiciary was unwilling to mete out.
I also noted that her paramour's LinkedIn page was taken down yesterday. The Atlanta Police Department is also likely taking action.
Plaintiffs are 49 U.S. visa applicants. Their applications were suspended under a January 2026 State Department policy that indefinitely pauses visa issuances for nationals of 75 countries. The Department presents the policy as part of an ongoing review of visa-vetting procedures, asserting that nationals of the designated countries "are at a high risk for becoming a public charge," and are therefore inadmissible under 8 U.S.C § 1182(a)(4). Plaintiffs contend that this policy violates the Immigration and Nationality Act by authorizing categorical visa denials based solely on applicant nationality.
They seek adjudication of their individual applications, as well as declarations that the policy is ultra vires and violates the Administrative Procedure Act, vacatur of the policy, and an injunction barring its enforcement….
The question at this point is whether plaintiffs can proceed pseudonymously, and the court says most can't:
At this stage, one Plaintiff has succeeded in demonstrating that her privacy and safety interests outweigh the public's presumptive and substantial interest in learning her identity. The remaining Plaintiffs fall short.
Jamaican Plaintiff Michelle Doe ("M. Doe") states that disclosure could enable her physically abusive ex-spouse to locate her and her children. Plaintiff Anastasiia Doe ("A. Doe"), a Russian national residing in Russia, alleges a risk of retaliation stemming from her documented U.S. ties. The remaining Plaintiffs, who hail from various countries, generally invoke emotional, reputational, employment, and pecuniary risks….
This Court has credited concrete safety threats as concerns that exceed "the annoyance and criticism that may attend litigation" and implicate "matter[s] of [a] sensitive and personal nature." Here, M. Doe alleges that her ex-spouse has a history of physical violence and "will use any information … to try to track [her] down." Her family thus does not publicly release "anything personal about [them]selves." … At this early stage, … the Court finds [M.Doe's] claims sufficient to establish that disclosure would pose a risk of harm.
A. Doe presents a closer call. As a Russian national residing in Russia, she fears that disclosure could expose her to "adverse consequences," since "Russians with documented U.S. family ties are routinely targeted." Her claims are thinly supported. Still, this Court has recognized the sensitivity of disclosing information that could expose foreign nationals to retaliation in their home countries. Given her residence and alleged vulnerability in Russia, [this factor] slightly favors pseudonymity for A. Doe.
The remaining Plaintiffs assert emotional, reputational, professional, pecuniary, and broad safety harms. Their contentions are generally attenuated and prospective. See, e.g., [Client Quest.] at 1 (asserting that disclosure would induce "emotional distress" or cause their family to be "targeted due to their race, ethnicity, and assumptions [by others]"); id. at 3 (maintaining risks of "unwanted scrutiny," "financial harassment," and "scams, extortion, or social/political suspicion" that attend U.S. immigration ties in Plaintiff's home country); id. at 8 (asserting risks of "harm, harassment, or retaliation," including "social scrutiny, jealousy, or targeting for financial exploitation" if Plaintiff were "identif[ied] as someone with active U.S. immigration involvement); id. at 9 (similar). Most are framed as harms that "could" be triggered by disclosure, rather than consequences established with any degree of certainty. Indeed, several Plaintiffs characterize their interests as "preventative" or expressly disclaim prior threats or harassment.
In this post, I shall continue down the free speech as autonomy-enhancing path, contending that engagement in freedom of expression activities (and its effects) in public schools can be politically educational, helping to prepare students for the public deliberation that a democracy like ours requires. It is not unusual for commentators, including judges, to associate public schools with civic education and democracy. In his recent majority opinion in Mahanoy, Justice Stephen Breyer characterizes them as "nurseries of democracy."
The relationship between free speech and civic education takes center-stage in what follows, with emphasis on the importance of trying to bring a certain kind of person into being, namely an autonomous one. A good democratic citizen will have adequate critical thinking skills, be open-minded, listen, and interact with those with whom they disagree in a manner that treats everyone as an equal member of the diverse political community.
The exercise of free speech rights by students, in public fora at their respective public schools, can make them more accustomed to the inevitably of disagreement. That way, they can learn how to disagree with others, who do not share their deepest political convictions, without necessarily concluding that they are stupid or evil. In conjunction with democratic education as part of the curriculum, they must be actively involved in educating themselves. No one can do it for them.
I am happy to pass along this hiring notice from my friends at ADF:
Alliance Defending Freedom is seeking Senior Counsel with 10+ years of experience to join our Center for Life and Center for Parental Rights teams. ADF is the largest religious liberty law firm in the world, with 18 Supreme Court wins since 2011 and a growing team of attorneys committed to defending free speech, religious freedom, parental rights, and the sanctity of life. Experienced litigators seeking high-impact, meaningful work should consider applying. Please apply here or reach out to Katie Garrard, Lead Recruiter, kgarrard@adflegal.org.
I find the term "judicial activism" to largely be meaningless. There is often no discernible line between "making law" and "applying the law." But I do think judges engage in judicial activism when they shed their robes on take on the role of advocates. It certainly happens that judges will give guidance or hints to advocates, especially pro se litigants, to help move cases along. But there is no reason for judges to raise issues that are not presented by the parties. The "party presentation" principle ensures that judges do not transgress this line.
Yet, judges seem to forget their role. The Fourth Circuit, in particular, has been summarily reversed twice in one term for violating the party presentation principle. In November, the Supreme Court SumRev'd the Fourth Circuit in Clark v. Sweeney You might think the judges in Richmond would take a hint, but no such luck. Yesterday, the Supreme Court summarily reversed the en banc Fourth Circuit in Margolin v. National Association of Immigration Judges. I wrote about this case back in December.
The Court explained that the party presentation principle prevents judges from becoming inquisitors:
Federal courts adhere to the principle of party presentation. See Clark v. Sweeney, 607 U. S. 7, 9–10 (2025) (per curiam). That principle—the "rule that points not argued will not be considered"—distinguishes our adversarial system of justice from an inquisitorial one. United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). Because courts are "essentially passive instruments of government," we rely on the parties to "frame the issues for decision" and decide "only the questions presented." United States v. Sineneng-Smith, 590 U. S. 371, 375–376 (2020) (internal quotation marks omitted).
The Court explained that it had to reverse the Fourth Circuit on this principle only a few months ago:
We recently reversed the Fourth Circuit for violating this party-presentation principle.
What happened here? The Fourth Circuit remanded the case on an issue that none of the parties had presented:
The Fourth Circuit violated the party-presentation principle when it decided "a case different from the one [respondent] advanced." 160 F. 4th, at 118 (Quattlebaum, J., dissenting from denial of rehearing en banc). As respondent conceded below, our precedent establishes that Congress, through the CSRA, intended to channel covered claims to the MSPB. ECF Doc. 72, pp. 8–9; ECF Doc. 11–1, p. 18. The parties thus confined their arguments to the narrow question whether respondent's claims were, in fact, covered. Unsatisfied with rejecting respondent's arguments on that question, however, the Fourth Circuit sua sponte addressed a much broader one and remanded for further proceedings on that question. The court transformed respondent's argument that the CSRA did not channel its claims into one that the CSRA might not—in light of current conditions—channel any claims. And the court did so without giving either side a chance to address its theory.See Clark, 607 U. S., at 9. That "'drasti[c]'" departure from the principle of party presentation "'constitute[d] an abuse of discretion.'" Id., at 10 (quoting Sineneng-Smith, 590 U. S., at 375).
The Court concluded:
The Court of Appeals lost sight of those principles here.
Why did the Fourth Circuit lose sight? Justice Thomas explains why in his concurrence, joined by Justice Barrett.
Nevertheless, the Fourth Circuit strained to avoid dismissal of the case based on its belief that new political considerations changed the governing law. The court explained that it would not allow its "black robes to insulate[it] from taking notice of items in the public record." Id., at 313. Specifically, the Fourth Circuit worried that because "the President removed the Special Counsel" and "two members of the MSPB," there were now "serious questions as to whether the CSRA's adjudicatory scheme continues to function as intended." Id., at 305. Congress designed theCSRA to rely on MSPB independence, the Fourth Circuit claimed, so now that "the Government has questioned the constitutionality of the removal protections enshrined in the CSRA," it was no longer clear that the statutory scheme was functioning as Congress intended. Id., at 308. If it were not, the court reasoned, Congress might not have intended for such claims to be channeled to the MSPB any longer.
Lower court judges consistently take judicial notice of what President Trump does, and uses those actions to change the meaning of the law. As Judge Wynn said in the travel ban case nearly a decade ago, "Do we just ignore reality and look at the legality?" Justice Thomas shoots down this amateur political analysis:
The Fourth Circuit's analysis bears little resemblance tolegal interpretation. Neither the President's view that he can remove federal executive officials, see Myers v. United States, 272 U. S. 52 (1926), nor his having done so, change the meaning of the statute or the binding nature of this Court's interpretation of it. "Conditions may have changed, but the statute has not." United States ex rel. Marcus v. Hess, 317 U. S. 537, 547 (1943). Courts may not "rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that" the President or courts may conclude that its removal restrictions were "beyond its authority." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 76 (1996). Statutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress's purposes. See U. S. Const., Art. I, §§1, 7. As Judge Quattlebaum wrote in dissent, the Fourth Circuit's decision below "undermines important principles of our system of justice," including that law remains law despite the "political controversies of the day." National Assn. of Immigration Judges v. Owen, 160 F. 4th 100, 118 (2025) (en banc).
Justice Barrett rarely joins these sorts of separate writings. She must have been especially troubled by what the en banc Fourth Circuit did here—with good reason.
The Fourth Circuit has a tradition, in which the judges come off the bench after arguments and shake hands with counsel. This tradition should not blur the distinction between those at the bar and those on the bench.
As I noted in a separate post, the legal advocacy group Neutral Principles engaged Erik Jaffe and me to draft an amicus brief for them in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, which the Court will hear this Fall. You can read the PDF, but here is the Foreign Commerce Clause analysis (the First Amendment analysis is excerpted here):
Besides the serious First Amendment concerns favoring a broad preemption ruling that would avoid such constitutional problems, the state-law suits in this case and others around the country seek to regulate national and international commerce in violation of the Commerce Clause and related structural constraints on extraterritorial regulation.
Boulder attempts to penalize multinational companies not merely for the local and immediate consequences of any local operations, but for the multi-causal long-term consequences of their sales and speech around the country and around the globe. And it is seeking to impose liability on Suncor for the joint consequences of millions of decisions by actors beyond its borders, operating in interstate and international trade. Whatever reticence this Court might have in preempting largely ordinary State regulation that incidentally affects interstate commerce, that reticence would be misplaced when it comes to such a major encroachment on international commerce and an attempt to impose Boulder's views of nuisance and appropriate speech on actors not just in other States but also in foreign countries.
For good reasons, this Court has understood Congress's delegated power over foreign commerce as exclusive of State powers. That understanding is consistent with the original public meaning of both the delegation of power to Congress in Article I, and the catch-all reservation of powers to the states and the people in the Tenth Amendment.
Regardless whether the Constitution supports the somewhat variable dormant interstate Commerce Clause as it had evolved over the years, a more textually grounded reading of the clause supports exclusive federal authority here. Boulder's attempt to impose Colorado law on interstate and foreign commerce conflicts with the Commerce Clause, Article I's delegation of powers, and the Tenth Amendment. And it more broadly conflicts with the Constitution's structure, which organizes horizontal relations among States on principles of (partial) state autonomy, equality, territoriality, non-aggression, and mutual recognition.
The legal advocacy group Neutral Principles engaged Erik Jaffe and me to draft an amicus brief for them in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, which will be heard by the Supreme Court in the Fall; I much enjoyed working on it with Erik, and thought I'd pass it along. You can read the PDF, but here are some excerpts from the First Amendment analysis; I've blogged separately about the Foreign Commerce Clause analysis.
SUMMARY OF ARGUMENT
Trying to avoid federal preemption, plaintiffs in this and other climate-change cases have shifted from claims targeting emissions to claims alleging supposed "deception." These "deception"-based claims are still preempted, because they still target emissions by seeking relief for injuries allegedly caused by emissions. But that shift also threatens numerous First Amendment violations and the possibility of conflicting regulations of national speech, association, and petitioning that further support preemption of such local efforts. Climate-change plaintiffs seek to punish energy companies not just for the asserted consequences of emissions, which result from the decisions and actions of millions of other actors and governments, but for the companies' speech about climate change that plaintiffs claim led to such emissions.
This case is an example of this pattern, but it is not an outlier: There are many like it across the country. And there likely will be many more in the field of climate change, with some potentially taking diametrically opposed views of what scientific speech is true or false. This Court should keep the serious First Amendment issues underlying this litigation campaign in mind in deciding this case. The danger to First Amendment rights is another reason favoring uniform national regulation of these issues as opposed to opportunistic state and local overreach that seeks to punish and suppress speech and debate on this controversial topic.
ARGUMENT
[I.] The First Amendment Protects Advocacy, Petitioning, and Expressive Association Related to Debates About Climate Change.
The speech that forms the basis for alleged liability in this case is core advocacy, petitioning, and expressive association that is protected by the First Amendment. Merely characterizing it as "marketing" does nothing to change its essential nature and its constitutional protection….
[A.] Climate-Change Lawsuit Claims Rest in Part on Defendants' Constitutionally Protected Speech, Petitioning, and Association.
There is no genuine doubt that the recent climate-change lawsuits brought by governments turn on defendants' political advocacy. Notwithstanding the assertion by plaintiffs that they "do not seek to impose liability" based on defendants' "speech," "participat[ion] in public debates," or "lobbying or petitioning." J.A.139, ¶¶ 541-542, that is precisely what they are doing. Plaintiffs expressly "seek to impose liability on Defendants in connection with misrepresentations about the known dangers of their products, in connection with their marketing of those products and in connection with the sale of those products," J.A.139, ¶ 541. But they include all public speech directly or indirectly related to their products and climate change under the rubric of "marketing" and have a boundless conception of what speech is "in connection" with marketing and sales, making their disclaimer meaningless. Other parts of the Amended Complaint show that these supposed misrepresentations do indeed include "participat[ion] in public debates" about climate change….
[B.] The First Amendment Protects Speech on Scientific Questions.
The speech over which climate change plaintiffs routinely sue is fully protected by the First Amendment, because it is advocacy on matters of core public concern and public policy.
In United States v. Alvarez, five members of this Court expressly recognized that the government cannot try to "penalize purportedly false speech" on such matters. 567 U.S. 709, 731 (2012) (Breyer, J., concurring in judgment). Justice Alito, joined by Justices Scalia and Thomas, reasoned:
[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.
A high-ranking government official has sexual relations in the workplace on multiple occasions. An article of fabric is stained. The official is asked about what happened and lies during an official investigation. But thanks to a whistleblower, the truth comes out. The official, caught in flagrante delicto, apologizes and insists it will never happen again. Sound familiar?
The saga of President Bill Clinton and Monica Lewinsky is well known to everyone over the age of 35. (I remember downloading the Starr Report over my 56k modem when I was 14 years old.) Lewinsky, an intern, had ten sexual encounters with Clinton in the White House. Most of the meetings occurred in the Oval Office, though some occurred in the room President Trump currently uses to display MAGA swag. Lewinsky never had sexual intercourse with Clinton, but they did have oral sex. Clinton touched Lewinsky's genitals and used a cigar in an inappropriate fashion. Betty Currie, the secretary who sat outside the Oval Office, maintained her plausible deniability, and would leave the area when Lewinsky was in there. Clinton infamously stained Lewinsky's blue dress from the GAP with his fluids.
Soon, the allegations leaked out. Initially, Bill Clinton lied. In an infamous January 1998 press conference, he said "I did not have sexual relations with that woman, Ms. Lewinsky." But Linda Tripp had secretly recorded conversations with Lewinsky, and provided them to Independent Counsel Ken Starr. Only after the truth came out did Clinton change his tune. He insisted, "It depends on what the meaning of the word 'is' is." President Clinton was impeached for obstruction of justice and perjury for giving false testimony in the Lewinsky investigation. Ultimately, Clinton was acquitted. After his acquittal, he was held in civil contempt by Judge Susan Webber Wright for misleading testimony before the grand jury. Clinton surrendered his Arkansas law license for five years.
Now lets turn to the "subject judge" in the Eleventh Circuit. For present purposes, I will pretend that we don't all know the judge's identity. I've spoken to several journalists and investigators today. They all concur with my analysis. The name will come out soon enough. For now, I'll just refer to this disgraced jurist as Judge Betsy.
Judge Betsy had sexual relations with a law enforcement officer in her chambers many times over the course of a year. This officer's department routinely litigated in front of the judge. This seems like a far greater risk conflict than sex with an intern. Unlike Betty Currie, who could walk away when her boss was engaging in sexual relations, Judge Betsy's poor law clerk was forced to hear "kissing sounds" and "sounds of moaning." And, much like Monica's blue dress, the clerk reported that "one of the cushions on a sofa in the Subject Judge's chambers was stained in a manner that was consistent with being caused by semen."
When the investigation began, Judge Betsy lied. She said the allegations were "outrageous" and "baseless" and denied them. She then attacked her law clerk, the whistle blower, for being late, using her phone in court, and dressing "too casual." Some chutzpah for Judge Betsy to shame her clerk's attire considering she disrobed to have sex in her chambers. This charge gives new meaning to David Lat's old blog, "underneath their robes." Remarkably, Judge Betsy blamed her law clerk for retaliating against a life-tenured federal judge. The power dynamics are completely backwards.
Judge Betsy sent two follow-up emails to the Chief District Judge. She lied: "I am astounded and confused, and have no idea what this clerk is referring to or why [the clerk] has made such allegations." Twenty minutes later, she told another lie: "I don't even know which law enforcement officer [the clerk] is referring to." Judge Betsy lied to Chief Judge Pryor: "I have never engaged in sexual intercourse in my office, nor anywhere else in the Courthouse." Judge Betsy could have taken those words right out of Bill Clinton's mouth. Much like Clinton, Judge Betsy got caught due to a whistleblower. The clerk reported the message through internal channels. Thankfully, there are no secret recordings.
The similarities, unfortunately, end here. Clinton was impeached, held in contempt, and surrendered his law license. Judge Betsy was given a slap on the wrist, and her identity was kept secret. Her punishment: she can write a vaguely-worded apology letter that will not confess any real errors, she won't have to serve on burdensome committees (that might be seen as a reward), and she can avoid all of the burdensome administrative work of being chief judge. Judge Betsy doesn't even read 70% of the civil orders she signed; this doesn't strike me as a particularly capable administrator. (I checked her docket, and she has signed orders today and yesterday; the world continues to turn.) There is no punishment at all. She obstructed the investigation, lied to several judges, and tried to retaliate against her law clerk. She only apologized when she got caught.
There are many stains on the federal judiciary. There is a stain on the couch cushion in Judge Betsy's chambers. Another stain is the flagrant abuse of discretion by Judicial Council of the Eleventh Circuit to make this reprimand private. Yet another stain was left by the Committee on Judicial Conduct and Disability of the Judicial Conference that affirmed this private reprimand. There are judges on both bodies that I respect, but they grossly erred here.
Of course, the biggest stain has been left by every member of the judicial apparatus who has done NOTHING to stop the stealth impeachment of Pauline Newman by Kimberly Moore. Judges can have sex in their offices, retaliate against their law clerks, lie about it, yet keep their reprimand private. But Judge Newman who has done nothing wrong hasn't been able to hear a case in years. Moore even mocks Newman by omitting her from a narcisisttic AI cartoon. Shame on them all.
What come next?
First, the House of Representatives needs to initiate impeachment proceedings for Judge Betsy. Perhaps if Judge Betsy felt some actual heat, she would take the honorable course and resign. Moreover, if the judiciary feels compelled to keep this entire matter under wraps, Congress can shine light on the entire matter. The impeachment power should include the power to subpoena records from the Judicial Council. As a generally matter, judicial records should not be subject to impeachment, but here the judges are acting in an administrative capacity pursuant to a federal statute. Under Trump v. Mazars, it would seem Congress has the power to investigate how its law is being enforced against a sitting federal judge. If the judiciary is serious about avoiding judicial impeachments, then they need to take seriously policing their own internal misconduct.
Second, Congress needs to revisit the discretion given to federal judges to police themselves. If these facts can conceivably justify keeping a reprimand private, the rules need to be changed. The public needs to know. Remember that Judge Moore tried to use "anonymity" to keep her inquisition of Judge Newman private. The subpoenas could also be used in furtherance of enacting new judicial ethics legislation. I realize much of these issues about judicial reform are partisan, but I hope all fair-minded people would agree that the punishments for Judges Newman and Betsy are not similar.
Third, the Georgia Bar needs to open a disciplinary proceeding into Judge Betsy, who remains an active member in good standing. After all the nonsense "barfare" we have seen, this would be an especially appropriate target for the disciplinary counsel to look into. Does a federal judge who has sex in chambers, and then lies to her presiding judges, have the candor and character to practice law?
Fourth, given the Judge's longtime friendship with the victorious DA, who herself had some experience with infidelity on the job, it is unlikely the Fulton County District Attorney will do anything. The U.S. Attorney for the Northern District of Georgia may find worthy of investigation the Judge's false statements and misuse of government property (that, the cushions).
The saga of President Bill Clinton and Monica Lewinsky is well known to everyone over the age of 35. (I remember downloading the Starr Report over my 56k modem when I was 14 years old.) Lewinsky, an intern, had ten sexual encounters with Clinton in the White House. Most of the meetings occurred in the Oval Office, though some occurred in the room President Trump currently uses to 