Should There Be Limits on Bar Investigations of Candidates for Judicial Office During the Campaign?

An excerpt from Attorney Grievance Comm'n v. Pierre, decided Wednesday by the Maryland Supreme Court, in an opinion by Chief Justice Fader:

This Attorney Grievance Commission of Maryland proceeding concerns the alleged professional misconduct of Marylin Pierre, the respondent and a member of the Bar of this State. It also concerns an overlay of factors that significantly complicates our review of Ms. Pierre's alleged violations of the Maryland Attorneys' Rules of Professional Misconduct ("MARPC"). That overlay arises from the circumstances in which the investigation of Ms. Pierre began and the absence of provisions in our rules to guide investigations arising in such circumstances.

The core allegations against Ms. Pierre arose from accusations made in an August 2020 campaign email. The email was sent by the campaign manager for a slate of four sitting judges against whom Ms. Pierre was running for a seat on the Circuit Court for Montgomery County. Sent just over two months before election day, the email was directed to Montgomery County attorneys and identified an "Urgent Need for Action." The email alleged, among other things, that Ms. Pierre's campaign had made false statements about the sitting judges, that Ms. Pierre had misstated her professional qualifications, and that she had engaged in unprofessional conduct in connection with a lawsuit more than two decades earlier.

Among the recipients of the campaign email was then-Bar Counsel. In the absence of any rules or procedures governing the investigation of allegations of misconduct arising in the midst of a judicial election, Bar Counsel immediately opened an investigation, informed the sitting judges' campaign manager of the existence of the investigation, and sought additional information. Soon thereafter, less than two months before the election, Bar Counsel sent Ms. Pierre a letter summarizing many of the allegations leveled by her rivals' campaign and insisted that Ms. Pierre respond to them in writing, in many cases by explaining and justifying statements made by her or her campaign, within two weeks….

After completing its investigation, the Commission, acting through Bar Counsel, filed a petition for disciplinary or remedial action in which it alleged that Ms. Pierre violated the MARPC and the New York Code of Professional Responsibility Disciplinary Rules ("NYDR") as a result of her: (1) misleading or false statements about the sitting judges in her 2020 campaign materials; (2) willful misrepresentations about her background on her 1999 Application for Admission to the Bar of New York ("New York Bar Application"); (3) willful misrepresentations about her background and career experience on her applications for various judgeships in Montgomery County between 2012 and 2017; and (4) false statements under oath and failure to timely respond to Bar Counsel's investigatory demands….

The assigned hearing judge found by clear and convincing evidence that Ms. Pierre had violated each MARPC and NYDR alleged, although the hearing judge rejected several of the grounds on which Bar Counsel had relied for those violations…. Bar Counsel recommended the sanction of disbarment, while Ms. Pierre recommended imposing no sanction. Given the overlay of circumstances mentioned above, and without intending to diminish the seriousness of the misconduct in which Ms. Pierre engaged, we will issue a reprimand….

We … begin by discussing four considerations arising from that context that are important to our analysis.

First, any investigation into a candidate for elected office that is undertaken at a sensitive point in the electoral process presents risks that should be avoided or minimized to the extent possible. Few things in our form of government rise to the level of importance of the State's interest in promoting faith in the integrity of the electoral process by which citizens choose their elected officials. Any perception that a government actor has attempted to exert undue influence on the outcome of an election risks undermining that faith. Government investigations of candidates for office during the heat of a campaign—especially, but not only, if they become a matter of public knowledge before the election—risk either: (1) an appearance of an attempt to exert influence on the election; or (2) actually affecting the outcome, whether intended or not.

To avoid the potentially corrosive or otherwise unintended effects that could accompany the pursuit of an investigation during the heat of an election, future investigations by Bar Counsel into alleged misconduct by a candidate in a judicial election should generally be postponed until after the election unless: (1) doing so would put an individual or the public at risk from past or potential future misconduct that is within the purview of the Commission and that could be avoided by prompt investigation; or (2) prompt investigation is necessary to preserve evidence. In either case, Bar Counsel should generally confine pre-election activities to what is necessary to satisfy the exigency. Although our own rules do not yet contain such guidance,⁵ other investigative agencies have recognized in rule or practice that such investigations should be delayed, postponed, or at least not disclosed during the run-up to an election.

The sensitivity of the timing of such investigations is recognized in memoranda distributed to employees of the United States Department of Justice. In a 2022 memorandum, Attorney General Merrick Garland stated that all Department employees "must be particularly sensitive to safeguarding the Department's reputation for fairness, neutrality, and nonpartisanship." For that reason, the Attorney General directed that any employee facing "an issue, or the appearance of an issue, regarding the timing of statements, investigative steps, charges, or other actions near the time of a primary or general election [should] contact the Public Integrity Section of the Criminal Division … for further guidance." In February 2020, then-Attorney General William Barr similarly warned of the need to "be sensitive to safeguarding the Department's reputation for fairness, neutrality, and nonpartisanship," and imposed special requirements for the opening of any investigation into a candidate for federal office. His memorandum announcing the requirements recognized that

[i]n certain cases, the existence of a federal criminal or counterintelligence investigation, if it becomes known to the public, may have unintended effects on our elections. For this reason, the Department has long recognized that it must exercise particular care regarding sensitive investigations and prosecutions that relate to political candidates, campaigns, and other politically sensitive individuals and organizations—especially in an election year.

Second, election-related speech is at the very heart of the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights. This Court has acknowledged that "'speech about the qualifications of candidates for public office,' including judicial candidates, is 'at the core of our First Amendment freedoms.'" Such political speech is entitled to "the highest level of First Amendment protection."

Third, speech that is critical of judges is also subject to robust free speech protection. As a result, for such speech to be actionable as a violation of the MARPC, it must meet the high standard set forth by the United States Supreme Court in New York Times v. Sullivan (1964), which is to say that it must be false and must have been made either knowing it to be false or with reckless disregard for its truth or falsity.

Fourth, given Bar Counsel's close association with the Judiciary, special considerations apply to investigations by Bar Counsel into the conduct of a candidate in a judicial election during the pendency of the election. This Court is ultimately responsible for the regulation of the practice of law in the State. In furtherance of that responsibility, we, by Rule, have established the Attorney Grievance Commission and the position of Bar Counsel. The Commission, established by Rule 19-702, is comprised of 12 members, including nine attorneys and three non-attorneys, all appointed by this Court for three-year terms and subject to removal by this Court at any time. Among other duties, the Commission appoints Bar Counsel, subject to approval from this Court; supervises Bar Counsel's activities; authorizes Bar Counsel's employment of attorneys, investigators, and other staff; approves or rejects Bar Counsel's recommendations concerning actions to take after investigating complaints, including dismissal, reprimand, or the filing of a petition for disciplinary or remedial action; and prepares an annual budget for the disciplinary fund subject to this Court's approval….

The roles and activities of the Commission and Bar Counsel with respect to all aspects of attorney discipline investigations, proceedings, and dispositions are further established by Rules promulgated by this Court. Although the Commission and Bar Counsel, by design, function independently of this Court, they play a critical role in carrying out our responsibility to regulate the legal profession in Maryland by, as set forth in the Commission's mission statement, "protecting the public and maintaining the integrity of the legal profession." The Commission's and Bar Counsel's close connection to the Judiciary advise caution in taking actions against a candidate who is challenging sitting judges to avoid the possibility that members of the public may perceive such actions as motivated by a desire to support the sitting judges.

{Following the issuance of this opinion, we will refer to the Standing Committee on the Rules of Practice and Procedure consideration of adopting a rule establishing procedures for addressing alleged misconduct violations that arise during the pendency of election campaigns generally and campaigns for judicial offices specifically.}

Two Justices concurred in relevant part, stressing their concern about the Bar Counsel's taking on the investigation during the campaign.

I have a separate post on some of the specific claims against Pierre, and how lawyers are subject to discipline for allegedly knowingly false statements about the court system and the judiciary as a whole, even though such statements made by private citizens are generally immune from criminal prosecution or civil liability.

Comments

[Martinned]

Wow. That's a lot of instances of people spelling "politician" wrong. Someone who has to participate in an election to keep their job is not a judge under any sensible definition of the word.

[Rossami]

You think appointed judges are any less politicians? What sand have you been burying your head in for the last... Now that I think about it, all of history.

There are fair arguments over the different ways that political influences affect appointed vs elected judges but to say that they only affect one and not the other is ridiculous.

[John F. Carr]

Appointed judges can be patronage hires without being politicians themselves.

[Purple Martin]

Sure… And all the military officers in the Pentagon are politicians because, y’know, Pentagon Politics.
And everyone in college administration is a politician because, y’know, college politics.
And every ambitious brown-noser in the office is a politician because, y’know, office politics.
And every NFL assistant coach want the head coach’s job is a politician because, y’know, team politics.
And every priest aspiring to the hierarchy is a politician because, y’know, church politics.
And every ISIS and Oathkeeper functionary is a politician because, y’know, terrorist politics.

etcetera, etcetera, etcetera

Once you label every ambitious human being whose profession you disdain a politician, what word do you use for those those who, in order to enter and progress in the profession, must convince strangers to vote for them?

[ReaderY]

But every profession you named is full of people who have to convince strangers to vote for them in order to get ahead.

[Purple Martin]

How so? Metaphorically? OK, as an analogy.

But of the ones mentioned, I'm familiar only with Pentagon politics and for that, political skills help, but there's no ballot (no, AF Form 707 isn't a ballot).

I'm talking actual choices among candidates on a ballot, to be voted on by people who want the one who gets the most votes to lead them (with or without some buffer between direct democracy and representative republic). Outside of governmental politics, closest might be a formal shareholder vote on a public corporation board of directors (it's at least partway there, which is one reason I didn't put that on my list).

So again, if everyone's a politician, what is the word you reserve for someone whose name is one choice among others on a non-metaphorical ballot?

[Kleppe]

"First, any investigation into a candidate for elected office that is undertaken at a sensitive point in the electoral process presents risks that should be avoided or minimized to the extent possible."

How about I pretend not to understand this concept and instead do the exact opposite, all the while screeching about "OUR DEMOCRACY"?

[Purple Martin]

“...to the extent possible” is doing an awful lot of work there.

[loki13]

Before the usual comments start, I think it needs to be pointed out that there are some facts in this case that people are likely overlooking.

First, the investigation started due to a campaign communication in the middle of an election- two months before election day.

Second, the investigation was solely about communications related directly to the campaign (a campaign communication from the four judges that Ms. Pierre was running against).

In other words, the basis for the investigation was a political email from the opponents of the candidate, during the campaign season, two months prior to the election.

In other words, the actual issue is whether the state bar should have initiated this investigation based on a political email sent by the opponents of the judge, two months before the election (it wasn't even a formal bar complaint). Of course, knowing that such an investigation could impact the election.

So yeah, this may have less relevance than you might think to ... whatever it is you have in your head.

As an aside, I agree with Martinned about the election (and even the partisan selection) of judges. This was not a terrible method in the past, when, to be honest, no one cared. But in the past two decades, we've seen a huge amount of money poured into judicial races ... because people (the kind of people you might expect) do care now, and those people realize that they can get a great return on their investment.

[Mr. Bumble]

Elected or appointed it's still political, so what's the answer?

[loki13]

There are other methods. Without going “full Europe” (a professional judiciary), I used to think that merit selection was a good method.

In those systems, you have nominating commissions evaluating candidates, identifying a certain number of well-qualified candidates, and then the executive (governor) of the state choosing from the candidates. The individuals would then be subject to retention elections. However, the increasing partisanship has led to a corruption of this process, because there is usually no check on the executive’s ability to effectively get the type of candidate that they want.

I think that some combination of a non-partisan merit selection process, combined with some ability to constrain the executive (as in a rule that they must appoint from X number of candidates provided, such as three or five) might do the trick. Maybe.

Ideally, there would be some type of entirely merits-based process, but I doubt that it would ever fly politically. As people often say, we are a country that even elects our dog catchers.

[LawTalkingGuy]

Interesting. I’ve actually really come around to the idea that judges (at least judges/justices on higher courts) should be elected and it should be partisan. Judicial power is political power just like executive power and legislative power. And in a liberal democracy the people should have a more direct say in how it’s exercised at least at the highest levels. Especially because judicial power is so susceptible to taking over legislative power in particular. Judges are supposed to decide disputes between parties according to law. But so many disputes brought to court are society-wide political, social, and cultural disputes. And the parties aren’t really individuals in a dispute, they’re entire governments and partisan affiliated advocacy groups. And that’s all well and good if the law to be applied is (theoretically) straightforward. But they’re trying to resolve disputes by creating legal definitions of some our most contested concepts like “liberty” or “equal protection” to use some examples.

So instead of the representative elected legislatures making a society’s most important choices through legislation which is arguably how it should work, it’s judges doing it through judgments. If that’s the game, then the players need to be directly democratically accountable and their values easily identified.

[Bob from Ohio]

I suggest prayers if so inclined because the world must be ending, I agree with LTG.

[loki13]

Part of the problem is that people think that judges are legislatures. They aren't. Or, at least, they shouldn't be. It's part and parcel of the disease.

Most judicial work is quite boring. And the vast majority of people don't understand what actually makes a judge "good."

To continue down the road we are on, to make judging explicitly partisan, is to give up any pretense of a desire for impartiality. Judges will always have a jurisprudence. They can, and will, make mistakes. But the perfect is not the enemy of the good. We should be trying to reduce partisanship in judges and the appearance that results are preordained - not throw up our hands and just say that judges are politicians.

[LawTalkingGuy]

I think it is neither possible nor desirable if it is possible to eliminate "politics" or "impartiality" from higher level judicial bodies. I mean even stuff we learn in law school that is considered bedrock legal principle born of logic-based legal reasoning to resolve a boring not particularly "hot-button" dispute between a party involves the application of particular political, social, and cultural values.

Let's take promissory estoppel. It's a judge created doctrine to resolve a boring everyday situation: someone broke a promise that someone else relied upon to their detriment. The judges who developed this doctrine attached a high value to making promises one intends to keep. They reflected that in our common law. That's a society-wide political judgment that rises out of a boring dispute.

Even in this very traditional situation, the case exists for direct democratic accountability. Maybe the body politic doesn't actually want its judges to be placing such a high value on promises.

[David Nieporent]

So instead of the representative elected legislatures making a society’s most important choices through legislation which is arguably how it should work, it’s judges doing it through judgments. If that’s the game, then the players need to be directly democratically accountable and their values easily identified.

That's an argument for eliminating the judiciary entirely, not making it elected. If they're just doing politics, then abolish their positions and let the legislature handle it.

[LawTalkingGuy]

I don’t think so. While the exercise of judicial power is still inherently political, the need for an independent body to resolve disputes and controversies is clear. The legislature isn’t really capable of adjudicating who is at fault in a car accident or who is guilty of robbery or whatever. Trial judges generally should be vetted professionals.

But if we’re going to have our judiciary enter judgments on the meaning of liberty for entire societies, then they should probably be politically accountable in a more direct way.

[myself]

I disagree.

Liberal democracy is not pure will of the people, it's control of the voters within boundaries.

The role of the judiciary when it rules on legislation is not to carry out the will of voters but to thwart it when it exceeds these boundaries, the whole "two wolves and a sheep voting on what to have for dinner" problem. The job of the judiciary is to look at the rules and interpret them as impartially as possible, not to enact the will of the people.

There's no perfect system for selecting these judges, but partisan elections are probably one of the worst.

[David Nieporent]

As an aside, I agree with Martinned about the election (and even the partisan selection) of judges. This was not a terrible method in the past, when, to be honest, no one cared. But in the past two decades, we’ve seen a huge amount of money poured into judicial races … because people (the kind of people you might expect) do care now, and those people realize that they can get a great return on their investment.

Have you seen the insanity in Wisconsin right now? Liberal justices recently became a majority on the state supreme court, and conservatives — including other justices — are having a tantrum about it. The biggest issue in the state right now is the insane level of legislative gerrymandering that has given the GOP a supermajority in the legislature with minority support. In the past the state supreme court has upheld partisan gerrymandering, but it's likely to overturn the current map. The newly elected liberal justice apparently said anti-gerrymandering things on the campaign trail, so some GOPers are threatening to impeach her unless she recuses. Meanwhile, one of the conservative justices currently on the supreme court just issued a MAGA-style screed about the "Democrat Party" in her dissenting opinion on a procedural issue in the case.

[loki13]

Ugh. I honestly don't know what people are expecting the end game of all of this is.

There is no "one-party" rule. If you think that the other party is a mortal enemy, then there really isn't much point in a democracy.

[ReaderY]

Exactly. One of the major parties, supportedly by roughly half of the electorate, thinks there isn’t much point in democracy. It has been taken over by people who think there’s no point in democracy, and has fallen into line.

What’s the point of democracy? It creates too much risk of the wrong people getting into power. Why would anybody whose goal is power want to risk that?

And as I’ve mentioned over the years, the other party has also been unwilling to risk democracy when it resulted in decisions violating their core beliefs. Living constitutionalism and all that.

[Rev. Arthur L. Kirkland]

Ugh. I honestly don’t know what people are expecting the end game of all of this is.

I can clarify that for you. The people who prefer reason, modernity, education, inclusiveness, progress, science, and the reality-based world kick the shit out of those who like backwardness, racism, superstition, xenophobia, misogyny, theocracy, homophobia, antisemitism, Islamophobia, downscale religious schooling, and can't-keep-up backwaters. They win the culture war handily and shape our continuing national progress.

The bigots get painted into increasingly small corners of the country, then die off and are replaced by better, younger, less conservative Americans. Unearned privilege, childish superstition, unreconstructed bigotry, silly dogma, and those who pine for illusory "good old days" hardest hit.

[Archibald Tuttle]

There can be no argument for treating judges different than other candidates. Should change the title to: "Should There Be Limits on Bar Investigations of Candidates for Office During the Campaign?"

Of course, that raises questions about Trump.

I also have questions about the legal definition of when a campaign starts.

[myself]

I don't think there's a legal definition of the campaign as much as a guidance that the closer the election the more cautious investigators should be. For instance, if someone uncovered some Trump tax fraud a month before the election the DOJ should definitely hold off any charges. But if he goes on a shooting rampage in his campaign office he's getting charged even if it's only a week before the election.

And it's not a new concern. The original Russia investigation never leaked until after the 2016 election precisely because they didn't want to be seen as influencing the election (also why Comey's criticism of Clinton to congress, and subsequent October surprise, were both big problems). It's also probably part of the reason why the Mar-a-Lago documents case went fairly silent around the mid-terms.

As for the current Trump investigations I'm not sure what else the investigators can do. These investigations have been going on for a while and cases often take years to go through the justice system. The only alternative is to wait until the 2024 election is complete, possibly 2028 as well if he were elected.

Since a lot of Federal crimes in the US have a statue of limitations of 5 years (though the espionage act statutes are typically 10) you might find it almost impossible to actually charge candidates.

[Magister]

But if [Trump] goes on a shooting rampage in his campaign office he’s getting charged even if it’s only a week before the election.

Sure, Trump knows he has to take it outside on Fifth Avenue.