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).
