The Volokh Conspiracy

The headline is an April Fool's joke, but the subheadline is 100% accurate.

On Friday, Chief Judge David Godbey of the Northern District of Texas informed Senator Schumer that his court would not adopt the Judicial Conference's "guidance."

The district judges of the Northern District of Texas met on March 27, 2024, and discussed case assignment. The consensus was not to make any change to our case assignment process at this time.

Ten days ago I wrote the issue was "all-but-dead." Now the issue is dead dead. (My initial proposed headline was, to paraphrase the classic New York Daily News cover, NDTX to Judicial Conference: Drop Dead).

I think every member of the Judicial Conference needs to reflect on three important items.

First, they were responding to pure political pressure and anecdotal evidence rather than any actual systematic study of how different types of relief were sought in different courts. Judge Godbey's letter noted that the federal courts do not track the "type of remedy" sought in case filed in NDTX. To be sure, the Judicial Conference proposed their policy based on zero actual empirical research.

Second, this issue was viewed as so uncontroversial that it was placed on the no-discussion "consent calendar." How could these judges--in particular the Chief Judge of the Fifth Circuit--so misjudged this issue. This blowback should have been entirely foreseeable.

Third, the Conference had the misguided belief that this rule could be mandated as a matter of statutory authority, but then had to walk the issue back after "some scholars" called them out. If any agency arbitrarily switched their reasoning like this, it would be set aside. This passage from DHS v. Regents of the University of California comes to mind:

Justice Holmes famously wrote that "[m]en must turn square corners when they deal with the Government." Rock Island, A. & L. R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 65 L.Ed. 188 (1920). But it is also true, particularly when so much is at stake, that "the Government should turn square corners in dealing with the people." St. Regis Paper Co. v. United States, 368 U.S. 208, 229, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.

Et tu John Roberts?

Here are links to the various posts that I regrettably had to write in the span of four days:

1. The Judicial Conference Legislates From The Shadow Docket

2. The Judicial Conference's New "Policy" Demonstrates Why Judges Should Not Make Policy

3. Senators McConnell, Cornyn, and Tillis Send Letters To Chief Judges About Judicial Conference "Policy"

4. How Many Judges Sit In Single Judge Divisions?

5. Where does the Judicial Conference Get the Authority To Mandate Case Assignments?

6. The Text Of The Policy Approved By The Judicial Conference

7. A Comment On The Judicial Conference's Policy From A Fifth Circuit Practitioner

8. A Numbers Game: Who Would The Judicial Conference's New Policy Help And Who Would It Hurt?

9. The Priorities of the Judicial Conference of the United States

I am working on an article about how to actually reform the issue of forum selection and nationwide relief. The working title: Make Three-Judge Panels Great Again. And if the Justices really are unhappy with how the lower courts are behaving, the follow-up article will be titled Make Circuit Riding Great Again.

Longtime readers will recall that every so often, I would go on a "rant" about how many federal judges were ignoring the text of Federal Rule of Evidence 702, as amended in 2000. Instead, they were relying on decisions that predated the rule, and indeed contradicted the rule. Some of these decisions relied on precedents dating back as far as the 1980s, before the Supreme Court's so-called Daubert trilogy of cases on expert evidence tightened the admissibility rules substantially, and of course before Rule 702 was amended to make it conform (and indeed, settle some existing ambiguities) with the trilogy. I also wrote an academic article on the subject.

As a result of these writings, attorney Eric Lasker invited me to co-author an article calling for a new amendment to Rule 702, one designed to call federal judges' attention to the fact that the Rule, and not preceding precedents, is what they are supposed to be applying. I agreed, but I warned Eric that professors often call for rules to be amended, and are almost just as often ignored. Our article was published in the William and Mary Law Review.

To my surprise, about a year later Professor Dan Capra, reporter for the Federal Rules of Evidence, told me that he read our article, agreed with its basic premise, and was planning to propose to the Rules Committee that it amend the rule. It took another seven years, but in December 2023, the new amendment to Rule 702 took effect:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Basically, the first change is admonishing judges that the admissibility of expert testimony is an issue for the judge to decide under the preponderance standard of Rule 104(a), and not, as some judges has been implicitly deciding, an issue for the jury under Rule 104(b) so long as a reasonable juror could decide the evidence is relevant. The second change is to clarify that judges should not look at an expert's methodology as an abstract matter, but rather ensure that the expert's stated opinion reflect a reliable application of reliable principles and methods.

These changes are different from what Eric and I proposed, but I think the underlying message to judges, that they need to stop shirking their responsibility to apply Rule 702, comes through loud and clear.

The NY State criminal trial that is about to begin on April 15th is all about whether former President Donald Trump lied in his expense reports to cover up his payment of hush money to pornographic film star Stormy Daniels prior to the 2016 presidential election. NY argues that in doing this Trump violated NY State laws, almost all of which involve misdemeanor offenses. The prosecution implies that Trump's alleged lies and coverup are a violation of federal campaign finance laws, which makes the misdemeanors more serious and justifies the prosecution.

First, it is settled U.S. Department of Justice (DOJ) policy not to prosecute such cases, which is one of many possible reasons why the federal government has not brought any charges against Trump about the Stormy Daniels hush money matter. Another reason is that the DOJ may think Donald Trump's expense reports were truthful as Trump claims them to be. Second, when former President Bill Clinton perjured himself and engaged in obstruction of justice by denying under oath that he had had sexual relations with then-White House intern Monica Lewinsky, both in a deposition and before a federal grand jury, the judgment of the U.S. Senate was that Bill Clinton's "lies about sex under oath" did not disqualify him from holding the presidency.

430 law professors signed a letter to the Senate on November 6, 1998 writing that "making false statements about sexual improprieties" under oath before a federal grand jury "is not a sufficient constitutional basis to justify the trial and removal of the President of the United States." Harvard Law Professor Cass Sunstein wrote on October 4, 1998 in The Washington Post that mere lies about sex under oath were not in his view disqualifying behavior in a president of the United States.

Both the law professors' letter and Professor Cass Sunstein's op-ed tried to argue that perjury about a person' private sex life fell in a different category from perjury about the execution of a President's political duties, which would be a disqualifying offense for a President to engage in. It was noted that people often lie about adulterous sex to protect their spouses and to preserve their marriages, and not to retain or to win the presidency.

Of course, this is exactly why Donald Trump allegedly paid Stormy Daniels what is alleged to be hush money because Trump's alleged affaire with Daniels coincided with his wife Melania giving birth to Trump's son Barron. Former President Bill Clinton's perjury under oath before a federal grand jury led to his acquittal by the Senate in his impeachment trial, and, after Clinton left office, the only penalty he paid for his lies under oath about sex to a federal grand jury was disbarment and the entry of a plea bargain. Donald Trump's alleged lies about sex in filing his expense accounts are minor compared to Bill Clinton's lies about sex under oath before a federal grand jury at a time when he had sworn that he would take care that the laws be faithfully executed. As many remember, Clinton's DNA was found on a white stain on Monika Lewinsky's blue dress proving that he had in fact had sexual relations with Lewinsky.

In 2004, the Democratic Party's nominee to be Vice President, John Edwards, paid a woman $1 million in hush money to cover up an alleged adulterous affair leading to the birth of a child born out of wedlock. The U.S. Justice Department prosecuted John Edwards who defended himself arguing that he was trying to protect his wife from learning about his adultery and that lies about sex and hush money to cover them up were not an illegal, unreported campaign donation. The trial resulted in a hung jury, and the U.S. Justice Department declined to re-prosecute John Edwards. The Department adopted a formal position that DOJ would not going forward prosecute as campaign finance violations the payment of hush money. Lies about sex were not fit to prosecute as campaign finance violations. Again, this explains why the federal government has declined to prosecute Donald Trump over his payments of hush money to Stormy Daniels and others.

Edwards' behavior involved much more hush money than Trump had paid, as well as the birth of an illegitimate child. If what John Edwards did was not a felony warranting jail time then what Donald Trump did in allegedly paying hush money to Stormy Daniels does not disqualify him for running for President either.

The disparate treatment of John Edwards, and Donald Trump for paying hush money and lying about having done so suggests NY State prosecutorial misconduct. Even if Trump were to be convicted in the sham proceeding set to begin on April 15th, voters should give him the same pass for lying in order to cover up adultery that was given to Bill Clinton and John Edwards.