WEBVTT - Mayorkas Impeachment & Oldest Judge Loses Case 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:10.039 --> 0:00:12.879 Welcome to the Bloomberg Law Show. I'm June Grosso. The 0:00:12.920 --> 0:00:18.360 House impeaches Homeland Security Secretary Alejandro Majorcis on its second try. 0:00:18.720 --> 0:00:22.400 What will the Senate do? And the country's oldest judge 0:00:22.520 --> 0:00:24.640 loses her fight to be reinstated. 0:00:27.200 --> 0:00:30.080 On this vote the Yaser two fourteen and the NASER 0:00:30.160 --> 0:00:33.080 two thirteen, the resolution is adopted. 0:00:34.159 --> 0:00:38.479 House Republicans finally got that one vote margin necessary to 0:00:38.560 --> 0:00:43.360 impeach Homeland Security Secretary Alejandro Majorcis in a redo of 0:00:43.400 --> 0:00:47.320 their failed attempt last week. Majorcis, the first Latino and 0:00:47.479 --> 0:00:50.760 immigrant to head the department, is only the second cabinet 0:00:50.800 --> 0:00:54.040 member in US history and the first in almost one 0:00:54.080 --> 0:00:57.880 hundred and fifty years to be impeached. The impeachment articles 0:00:57.960 --> 0:01:02.600 charged Majorcis with failing to US immigration law. The allegations 0:01:02.600 --> 0:01:06.000 are baseless and I'm focused on the work. There's virtually 0:01:06.040 --> 0:01:08.959 no chance the Senate will have the necessary two thirds 0:01:09.040 --> 0:01:13.280 majority to convict Majorcis and remove him from office. Despite that, 0:01:13.440 --> 0:01:16.960 the House went forward with impeachment, succeeding with the vote 0:01:16.959 --> 0:01:21.080 of Republican Majority Leader Steve Scalice who returned to Washington 0:01:21.200 --> 0:01:23.400 after being away for cancer treatments. 0:01:23.959 --> 0:01:27.920 And if they ignore this, then there will be accountability 0:01:27.959 --> 0:01:29.640 and consequences to that action. 0:01:29.760 --> 0:01:30.759 So it's on the Senate. 0:01:30.959 --> 0:01:35.760 Several leading conservative scholars, along with former Homeland Security secretaries 0:01:35.880 --> 0:01:40.080 from both Republican and Democratic administrations, have dismissed the Majorcis 0:01:40.160 --> 0:01:43.960 impeachment as unwarranted or a waste of time, as has 0:01:44.000 --> 0:01:46.280 House Minority Leader HACKEM Jeffreys. 0:01:47.120 --> 0:01:48.400 This is extraordinary. 0:01:48.560 --> 0:01:52.480 This is the height of cynicism. Once again, they are 0:01:52.560 --> 0:01:56.559 embracing chaos and walking away from common sense. 0:01:56.800 --> 0:01:59.360 Joining me is an expert in impeachment, Frank Bowman, a 0:01:59.400 --> 0:02:02.200 professor of the u University of Missouri Law School, who 0:02:02.320 --> 0:02:06.800 justified before the Homeland Security Committee in January. They voted 0:02:06.840 --> 0:02:10.720 to impeach him on accounts of wilful and systemic refusal 0:02:10.800 --> 0:02:13.880 to comply with the law and reach of public trust 0:02:14.480 --> 0:02:17.600 relating to his handling of immigration and security at the border. 0:02:18.040 --> 0:02:20.639 Even if proved, does that rise to the level of 0:02:20.720 --> 0:02:22.200 high crimes and misdemeanors? 0:02:23.280 --> 0:02:25.440 Well, with respect to the first claim that he actually 0:02:25.440 --> 0:02:28.799 willfully violated the law on a matter that was real 0:02:28.840 --> 0:02:31.840 seriousness I mean, I suppose if it were true, we 0:02:31.919 --> 0:02:34.160 could have a conversation. But it's not true. It's name 0:02:34.240 --> 0:02:37.160 close to true. The best they can say is that 0:02:37.360 --> 0:02:41.239 he used the discretion conferred on him by law to 0:02:41.280 --> 0:02:45.160 interpret and apply a series of immigrasion laws which are 0:02:45.600 --> 0:02:49.400 both contradictory and confusing, and he did that in conformity 0:02:49.440 --> 0:02:52.520 with the directives of the President. There simply is no 0:02:53.000 --> 0:02:55.720 indication at all that he's violating the law. I mean, 0:02:55.760 --> 0:02:58.280 the primary thing that they claim he's violating the law 0:02:58.280 --> 0:03:01.200 on is the claim that the law a choirs that 0:03:01.360 --> 0:03:04.560 people who are in the country illegally must be detained 0:03:04.680 --> 0:03:07.040 and that they cannot be be paroled. Well, it's just 0:03:07.080 --> 0:03:09.720 not true. I mean, the law itself has plenty of 0:03:09.720 --> 0:03:12.680 parole provisions, And in fact, on that particular point, the 0:03:12.720 --> 0:03:15.320 United States Supreme Court has actually held any one of 0:03:15.320 --> 0:03:18.440 the series of lawsuits brought against the Department and Secretary 0:03:18.480 --> 0:03:20.919 of America's by some state for public coustrians general, the 0:03:20.919 --> 0:03:24.200 Supreme Court's actually held that detention is not mandatory. So 0:03:24.320 --> 0:03:27.520 the thing that they are claiming he's violating the law 0:03:27.600 --> 0:03:31.480 on the Supreme Court has basically said, no, that's not true. 0:03:31.680 --> 0:03:34.840 It's really quite remarkable. So we don't even need to 0:03:34.840 --> 0:03:38.080 get to the question of whether or not, in some 0:03:38.240 --> 0:03:42.960 hypothetical case, a sufficiently serious and plain violation of law 0:03:43.000 --> 0:03:46.920 would in itself be impeachable. The answer, I suppose, in theory, 0:03:46.920 --> 0:03:49.800 in the right case might be yes. But he hasn't 0:03:49.840 --> 0:03:52.600 violated the law. What they've got is a series of 0:03:52.640 --> 0:03:55.520 lawsuits against him in which, you know, in the lower 0:03:55.560 --> 0:03:57.400 courts they've won some and they've lost them, and the 0:03:57.440 --> 0:03:59.280 only two that made it up to the Supreme Court, 0:03:59.360 --> 0:04:02.320 the Republicans have lost. They don't have a final judgment 0:04:02.360 --> 0:04:06.080 against him suggesting that he's violated the law. It's all 0:04:06.160 --> 0:04:06.880 it's all made up. 0:04:07.200 --> 0:04:10.440 What about this breach of public trust? That's pretty broad? 0:04:11.280 --> 0:04:15.400 Well, that is in a piece I wrote on my blog, 0:04:15.440 --> 0:04:19.080 I refer to that count as a ragpicker's bizarre because 0:04:19.160 --> 0:04:22.520 it's just got a bunch of stuff in it. For example, 0:04:22.600 --> 0:04:25.719 they claim he made false statements to the committee. No 0:04:25.800 --> 0:04:29.800 he didn't. The claimed false statements that they are alleging 0:04:29.839 --> 0:04:32.880 he made are cases in which they're basically disagreeing with 0:04:33.000 --> 0:04:36.120 his use of adjectives and adverbs. In other words, they 0:04:36.160 --> 0:04:39.640 claim that he falsely claimed that apprehended aliens of no 0:04:39.760 --> 0:04:42.680 legal basis from in the United States were being quickly removed. 0:04:42.920 --> 0:04:45.240 The only thing to disagree with that is the word quickly. 0:04:45.400 --> 0:04:48.320 They're impeaching him because they don't like his use of 0:04:48.400 --> 0:04:51.960 the adjective quickly to modify removed. In other cases, he 0:04:52.400 --> 0:04:55.719 described the border as being secure or no less secure 0:04:55.760 --> 0:04:59.960 than it was previously. They claim that's a false statement. 0:05:00.520 --> 0:05:04.520 At most, it's an opinion about the efficiency of his 0:05:04.880 --> 0:05:09.279 administration and his agency. And we know, first of all, 0:05:09.279 --> 0:05:11.280 from the very time of the framing that matters of 0:05:11.320 --> 0:05:14.719 opinion are not matters appropriate for impeachment. But in any case, 0:05:14.880 --> 0:05:17.440 if it were an impeachable offense for someone to go 0:05:17.520 --> 0:05:21.599 into Congress and provide a generous and even optimistic assessment 0:05:21.600 --> 0:05:24.200 of the performance of our an agency, or for example, 0:05:24.200 --> 0:05:27.640 a congressman to provide a generous spin on some matter 0:05:27.680 --> 0:05:30.080 of public policy, everybody would be impeachable. There is not 0:05:30.160 --> 0:05:33.520 a single instance of an actual false statement if they 0:05:33.600 --> 0:05:36.360 allege in this article. So that's one thing they claim. 0:05:36.600 --> 0:05:38.600 In that second article, they claim that there was an 0:05:38.640 --> 0:05:42.599 obstruction of congressional oversight. Well for Republicans who defended Donald 0:05:42.640 --> 0:05:45.120 Trump to claim that anybody else to be impeachable for 0:05:45.240 --> 0:05:48.040 obstruction of congressional oversight would make a dog to laugh. 0:05:48.320 --> 0:05:51.920 And it's simply not true that my ARC has substructed 0:05:52.000 --> 0:05:57.200 congressional oversight. He has testified somebody twenty seven times before 0:05:57.279 --> 0:06:00.440 various congressional committees. Multiple times before this committee, he've made 0:06:00.560 --> 0:06:04.159 like ninety witnesses available to Congress. And the question about 0:06:04.160 --> 0:06:07.400 the operations, the department provided tens of thousands of pages 0:06:07.440 --> 0:06:11.720 of documents. And when I learned when the committee wanted 0:06:11.760 --> 0:06:14.799 to examine him him testify one more time, he responded 0:06:14.800 --> 0:06:16.880 by saying, well, a particular day you've asked me to come, 0:06:17.040 --> 0:06:20.360 I'm actually meeting with Mexican officials to talk about border issues. 0:06:20.360 --> 0:06:22.800 Can we reschedule it? And they refused and went ahead. 0:06:22.800 --> 0:06:25.320 An impeached in p obstruction. I mean, it's a joke. 0:06:26.040 --> 0:06:28.599 There is absolutely nothing in either of these articles. And 0:06:28.640 --> 0:06:33.280 I think that fact that that is so is indicated 0:06:33.320 --> 0:06:36.080 by the fact that they could not find a single 0:06:36.600 --> 0:06:40.960 legal expert of any kind, not a legal historian, not 0:06:41.040 --> 0:06:43.960 a constitutional scholar, not a judge, not a lawyer, not 0:06:44.040 --> 0:06:46.120 a single person could they find to come down to 0:06:46.200 --> 0:06:48.800 Congress and say, yes, does a constitutional matter what you're 0:06:48.839 --> 0:06:50.720 alleging is impeachable because not. 0:06:50.760 --> 0:06:55.039 There Also, just hours before the vote, the US Border 0:06:55.080 --> 0:06:58.800 Patrol released new data showing that the number of migrants 0:06:58.839 --> 0:07:03.040 illegally crossing the southern border with Mexico plummeted by fifty 0:07:03.040 --> 0:07:07.839 percent in January compared with December. Who knows why, But 0:07:08.279 --> 0:07:11.520 does that mitigate against them impeaching him? 0:07:12.240 --> 0:07:16.920 Well, performance numbers shouldn't be a matter of impeachability, right, 0:07:16.920 --> 0:07:21.400 I mean, that's the key here. Impeachment is a constitutional 0:07:21.440 --> 0:07:25.880 mechanism that is reserved for the most serious kinds of offenses. 0:07:26.080 --> 0:07:29.040 That's why if you can only bepeached for treason, bibrary 0:07:29.080 --> 0:07:32.760 or other high crimes and misdemeanors. Is a grave constitutional 0:07:32.880 --> 0:07:36.240 tool for the most serious of matters. It is not 0:07:36.840 --> 0:07:40.440 something that you trot out simply because you disagree with 0:07:40.840 --> 0:07:44.400 administration policy or you find the performance of a particular 0:07:44.640 --> 0:07:47.440 cabinet officer to be below your standards. I mean, does 0:07:47.480 --> 0:07:51.560 there reason that myorcis is only the second CABT officer 0:07:51.640 --> 0:07:54.080 ever to be impeached. It's because for two hundred and 0:07:54.080 --> 0:07:57.720 thirty five years, everybody understood that's the case, that you 0:07:57.800 --> 0:08:00.600 don't impeach people for policy differences. If you do, why 0:08:00.640 --> 0:08:03.200 you'd be impeaching people left right sideways. The only Capint 0:08:03.200 --> 0:08:05.720 officer who's ever been impeached was a guy who flagrantly 0:08:05.720 --> 0:08:09.600 committed bribery. The Republicans are stepping into dangerous new ground 0:08:09.640 --> 0:08:12.320 here where they're simply saying, well, anytime we don't like 0:08:12.600 --> 0:08:16.640 something the administration is doing, we can simply impeach the 0:08:16.680 --> 0:08:19.280 person who happens to be the head of the department 0:08:19.320 --> 0:08:21.680 who's doing most of it. So I don't think that 0:08:22.080 --> 0:08:25.600 it matters at all what the particular numbers are for 0:08:25.640 --> 0:08:30.320 impeachment purposes. However, that does take us into the larger 0:08:30.400 --> 0:08:33.960 picture here, which is, even if your theory is I 0:08:33.960 --> 0:08:38.760 can impeach an officer because I'm really really upset about 0:08:38.960 --> 0:08:42.080 the conduct of a particular policy area by the administration, 0:08:42.679 --> 0:08:44.920 the real thing you should be doing, actually is you 0:08:44.960 --> 0:08:48.199 should be passing legislation to address the problem that you're 0:08:48.200 --> 0:08:51.160 so upset about. But of course, as we know, within 0:08:51.200 --> 0:08:55.240 the last ten days or so, a bipartisan group of 0:08:55.480 --> 0:09:00.640 senators negotiated a real piece of legislation would have made 0:09:00.800 --> 0:09:04.800 very significant changes to immigration enforcement in this country. And 0:09:04.840 --> 0:09:08.080 then the very same people who want to impeachment arca 0:09:08.120 --> 0:09:11.040 is basically squashed it at the behest of the Donald 0:09:11.040 --> 0:09:14.160 Trump because they don't want to solve the problem, they 0:09:14.200 --> 0:09:16.600 want to run on it. And that's all this is. 0:09:17.320 --> 0:09:21.720 The House has appointed eleven Republicans to serve as impeachment managers, 0:09:22.440 --> 0:09:25.160 so then this goes over to the Senate. Does the 0:09:25.200 --> 0:09:26.960 Senate have to hold a trial? 0:09:27.400 --> 0:09:32.400 An interesting question constitutionally, It's one we talked about in 0:09:32.440 --> 0:09:35.480 the first Trump case. I don't know the answer. Nobody 0:09:35.520 --> 0:09:39.120 really knows the answer, but certainly it appears that the 0:09:39.160 --> 0:09:42.560 Senate has concluded that the majority leader has concluded that 0:09:42.640 --> 0:09:45.440 something has to happen, that the Senate has to address it, 0:09:45.559 --> 0:09:47.840 because I gather that they're going to commence something on 0:09:48.240 --> 0:09:49.240 the twenty sixth. 0:09:49.559 --> 0:09:53.440 Well, he said that the appointed House Republican impeachment managers 0:09:53.440 --> 0:09:56.800 will present the articles to the Senate when Senators return 0:09:56.880 --> 0:09:59.319 to Washington at the end of the month, and then 0:09:59.360 --> 0:10:02.559 the Senate Press in pro tam Patty Murray will preside 0:10:02.600 --> 0:10:05.400 over a trial. But I'm wondering if there is any 0:10:05.400 --> 0:10:06.400 way around that. 0:10:06.559 --> 0:10:09.640 There is a mechanism by which one could avoid holding 0:10:09.760 --> 0:10:13.360 this full trial. Commonly for the last several decades, at 0:10:13.440 --> 0:10:17.200 least for lesser officers people other than presidents. They've created 0:10:17.200 --> 0:10:20.920 a trial committee that will simply hold hearings, present a 0:10:21.000 --> 0:10:22.760 report to the full Senate, and the full Senate votes. 0:10:22.880 --> 0:10:25.040 I don't even think that will happen here. My best 0:10:25.080 --> 0:10:28.599 guess is that some sort of trial will be convened, 0:10:28.960 --> 0:10:32.480 and that the presiding officer will probably entertain a motion 0:10:32.600 --> 0:10:35.920 to dismiss the case upfront without the presentation of evidence, 0:10:36.000 --> 0:10:38.200 and that will be taken, and my guess the whole 0:10:38.200 --> 0:10:40.880 thing will be dismissed without any evidence being presented. I 0:10:40.920 --> 0:10:43.600 don't know that, no inside information on that point, but 0:10:43.880 --> 0:10:47.520 something like that email, remember, actually was attempted in certainly 0:10:47.559 --> 0:10:50.160 I think the second Trump case, where there's an emotion 0:10:50.320 --> 0:10:54.679 to dismiss based on the alleged lack of jurisdiction, and 0:10:55.080 --> 0:10:57.640 that motion failed and they went forward with something the 0:10:57.720 --> 0:10:59.640 nature of trial. I think in this case the emotion 0:10:59.679 --> 0:11:01.800 will be a very probably and that will be the 0:11:01.840 --> 0:11:02.800 end of it. Now. 0:11:03.080 --> 0:11:07.000 Majorcis is not the only Biden administration official that House 0:11:07.040 --> 0:11:10.280 Republicans want to impeach. They're of course looking into impeaching 0:11:10.320 --> 0:11:14.880 President Biden. They file legislation to impeach a list including 0:11:15.080 --> 0:11:19.800 Vice President Kamala Harris, Attorney General Merrick Garland, FBI Director 0:11:19.880 --> 0:11:24.240 Christopher Ray, and Defense Secretary Lloyd Austin. What is wrong 0:11:24.280 --> 0:11:25.040 with this picture? 0:11:25.840 --> 0:11:28.559 I mean one has to avoid overreacting a little bit 0:11:28.600 --> 0:11:33.360 in the sense that individual outlying members of the House 0:11:33.400 --> 0:11:38.160 that both parties have over time sometimes introduced resolutions to 0:11:38.200 --> 0:11:40.480 try to impeach this person or that person because they 0:11:40.480 --> 0:11:43.960 were ticked off. What's different here, obviously, is that what 0:11:44.000 --> 0:11:46.080 we have here is not simply the actions of one 0:11:46.160 --> 0:11:49.439 or two eccentrics. What we have here is a concerted 0:11:49.480 --> 0:11:53.040 effort by House Republicans to impeach people from the President 0:11:53.120 --> 0:11:56.840 on down without any grounds. And that is very very bad. 0:11:56.920 --> 0:12:01.080 I mean, first, it terribly devalues the institute of impeachment itself, 0:12:01.120 --> 0:12:04.240 which is supposed to be reserved for the most serious 0:12:04.280 --> 0:12:09.920 instances of very grave official misconduct. If you are taking seriously, 0:12:10.559 --> 0:12:13.880 completely non serious allegations on a regular basis, then when 0:12:13.880 --> 0:12:16.920 something really serious comes along, it's too easy to dismiss it. 0:12:17.000 --> 0:12:20.640 So that's problem number one. And the other problem, of course, 0:12:20.760 --> 0:12:23.679 is that they're very likely to lead us down a 0:12:23.720 --> 0:12:28.920 path of sort of endless taliatory impeachment or impeachment investigations. 0:12:28.960 --> 0:12:31.559 And at this point the phenomenon is limited to Republican 0:12:31.720 --> 0:12:35.320 but you know, Democrats are not saints, and should control 0:12:35.360 --> 0:12:39.280 of the House shift and Democrats be based with a 0:12:39.360 --> 0:12:41.720 Republican president, I think there's leasting to be a temptation 0:12:42.080 --> 0:12:45.120 for them doesn't start doing the same sort of performantive foolishness, 0:12:45.160 --> 0:12:48.560 and that not only devalues impeachment, but it devalues the 0:12:48.600 --> 0:12:53.439 seriousness of the entire institution. It makes the House look silly, 0:12:53.520 --> 0:12:57.800 It wastes their time. It means that people looking on 0:12:58.320 --> 0:13:02.240 from afar are likely think that anytime anybody raises impeachment, 0:13:02.320 --> 0:13:06.280 this isn't serious. This is just people being fools. And 0:13:06.480 --> 0:13:10.120 that's terrible. It's terribly dangerous. It removes one of the 0:13:10.600 --> 0:13:16.160 important constitutional protections against really's serious misconduct, and it just 0:13:16.240 --> 0:13:19.520 wastes the country time, it wastes the House's time. Republicans 0:13:19.520 --> 0:13:23.480 are doing something remarkably dangerous and remarkably wish well. 0:13:23.320 --> 0:13:26.240 We'll see what happens in this case. On February twenty sixth, 0:13:26.360 --> 0:13:29.000 Thanks so much, Frank. That's Professor Frank Bowman of the 0:13:29.080 --> 0:13:32.600 University of Missouri Law School. Coming up next, a ninety 0:13:32.640 --> 0:13:36.079 six year old judge loses her fight to be reinstated. 0:13:36.280 --> 0:13:40.640 This is Bloomberg. Ninety six year old judge Pauline Newman, 0:13:41.040 --> 0:13:44.400 known for her descents and expertise in patent law, has 0:13:44.400 --> 0:13:47.120 set on the Federal Circuit Court of Appeals for almost 0:13:47.160 --> 0:13:50.360 forty years, but for the last year she's been fighting 0:13:50.360 --> 0:13:53.959 her suspension from the bench for refusing to undergo medical 0:13:54.000 --> 0:13:57.480 testing as part of an investigation into her fitness. 0:13:58.160 --> 0:14:03.520 I think nation needs my voice. I think that if 0:14:03.559 --> 0:14:08.080 the judges on this court are willing and more than 0:14:08.080 --> 0:14:13.320 willing to push me out in order to get me 0:14:13.400 --> 0:14:16.439 out of the way so that no one says that 0:14:16.440 --> 0:14:20.320 they've made a mistake, that I need to be here 0:14:20.840 --> 0:14:22.880 to countermand that. 0:14:24.160 --> 0:14:28.360 Her prospects for reinstatement appeared dim after most of her 0:14:28.440 --> 0:14:32.520 lawsuit challenging her suspension was dismissed on Monday by a 0:14:32.600 --> 0:14:36.720 DC federal judge, and the US Judicial Conference's Committee on 0:14:36.880 --> 0:14:41.320 Conduct and Disability upheld the suspension last week. Joining me 0:14:41.400 --> 0:14:44.400 is Arthur Hellman, a professor at the University of Pittsburgh 0:14:44.480 --> 0:14:47.720 Law School who helped draft the laws courts use to 0:14:47.760 --> 0:14:50.760 Police Judges Arthur. This case has gone off in so 0:14:50.840 --> 0:14:54.640 many different directions, so perhaps we should start at the beginning. 0:14:55.160 --> 0:14:58.600 Her fellow jurists on the US Court of Appeals for 0:14:58.640 --> 0:15:02.800 the Federal Circuit voted unanimously in September to bar her 0:15:02.880 --> 0:15:05.640 from getting new case assignments for at least a year, 0:15:06.080 --> 0:15:10.320 or until she sat for court ordered medical examinations. How 0:15:10.360 --> 0:15:12.440 did we get to that point. 0:15:12.520 --> 0:15:15.480 Well, it's been a rather twisted path, and as you 0:15:15.560 --> 0:15:19.680 point out, it started back actually, I think in February 0:15:19.800 --> 0:15:23.760 or March of last year, so we're now one year 0:15:23.880 --> 0:15:28.760 into this very lengthy proceeding. But the Chief Judge of 0:15:28.760 --> 0:15:34.440 the Circuit, Chief Judge Kimberly Moore, received reports from primarily 0:15:34.640 --> 0:15:40.160 staff employees of the Federal Circuit that Judge Newman seemed 0:15:40.160 --> 0:15:46.400 to be having cognitive or behavioral problems, and that led 0:15:47.040 --> 0:15:53.560 Chief Judge Moore initially to deny Judge Newman the opportunity 0:15:53.640 --> 0:15:58.600 to sit on the monthly panels for April and May 0:15:58.960 --> 0:16:05.360 of last year. And Judge Moore also identified a complaint 0:16:05.920 --> 0:16:10.440 against Judge Newman under the Judicial Conduct and Disability Act 0:16:10.520 --> 0:16:15.560 of nineteen eighty that started an investigation which was carried 0:16:15.600 --> 0:16:21.040 out by a special committee of the Federal Circuit Judges, 0:16:21.120 --> 0:16:26.920 three judges, including Judge Moore, that was to investigate the 0:16:27.160 --> 0:16:32.920 complaints primarily of disability, but that included a request or 0:16:33.000 --> 0:16:37.800 really an order, to Judge Newman to undergo some neurological 0:16:37.880 --> 0:16:43.440 testing submit some medical reports. Judge Newman refused to do 0:16:43.560 --> 0:16:47.320 any of those things, and that led Chief Judge Moore 0:16:47.520 --> 0:16:53.480 to add a complaint of judicial misconduct against Judge Newman. 0:16:54.200 --> 0:16:58.160 And that is what we're dealing with now. The underlying 0:16:58.200 --> 0:17:02.400 concern is about disability, but for almost the last year, 0:17:02.880 --> 0:17:07.360 the entire focus has been on this conduct, specifically failure 0:17:07.400 --> 0:17:09.959 to cooperate with the special committee. 0:17:10.920 --> 0:17:15.080 And it's very unusual for the public to have a 0:17:15.160 --> 0:17:19.119 window into these kinds of proceedings, and it seemed to 0:17:19.160 --> 0:17:21.240 get very personal, very fast. 0:17:21.840 --> 0:17:24.919 Well, it's not only unusual, it's unprecedent that nothing like 0:17:25.000 --> 0:17:28.000 this has ever happened. I mean, ordinarily, all of this 0:17:28.600 --> 0:17:33.520 would be going on in private, and in almost all 0:17:33.640 --> 0:17:38.240 other cases it would have been resolved privately, and all 0:17:38.240 --> 0:17:42.040 we would have known was the ultimate resolution. And yes, 0:17:42.119 --> 0:17:44.280 you know, I'm speaking as an outsider. I have no 0:17:44.400 --> 0:17:49.320 personal knowledge any of the individuals involved. But my sense, 0:17:49.560 --> 0:17:52.320 you know, from talking to people and from reading some 0:17:52.400 --> 0:17:57.040 of the blog commentaries, is that it does appear to 0:17:57.680 --> 0:18:03.040 be somewhat personal, which makes it especially regrettable. Chief Judge 0:18:03.119 --> 0:18:07.720 Moor did not take the opportunity to request Chief Justice 0:18:07.840 --> 0:18:12.280 Roberts to transfer this proceeding to another circuit. He could 0:18:12.320 --> 0:18:16.000 have done that under the rules, and I think if 0:18:16.040 --> 0:18:18.560 she had done that, we would be looking at a 0:18:18.680 --> 0:18:22.080 very different sort of proceeding at this point, which perhaps 0:18:22.440 --> 0:18:23.680 a happier outcome. 0:18:24.080 --> 0:18:27.040 A seven judge panel of the Judicial Conference of the 0:18:27.119 --> 0:18:31.159 United States Committee on Judicial Conduct and Disability, which I 0:18:31.240 --> 0:18:34.439 hadn't heard of until this case, said in a written 0:18:34.440 --> 0:18:37.840 decision that Newman didn't have good cause to refuse to 0:18:37.880 --> 0:18:42.280 cooperate with the Appeals Court investigation. Tell us about the decision. 0:18:42.640 --> 0:18:47.359 Yes, as you've mentioned, this is a committee, a standing 0:18:47.400 --> 0:18:51.239 committee of the Judicial Conference of the United States, and 0:18:51.280 --> 0:18:54.240 that's a little known body, but it's a very important 0:18:54.240 --> 0:18:59.440 one because it's the administrative policymaking body of the national 0:18:59.480 --> 0:19:07.160 federal Judiciary. And the statute that established the Judicial Conduct 0:19:07.280 --> 0:19:13.560 and Disability Proceeding authorizes the Judicial Conference to delegate its 0:19:13.600 --> 0:19:17.280 responsibilities under the Act to a standing Committee, which it 0:19:17.320 --> 0:19:22.399 has done. So, this standing Committee reviewed the order of 0:19:22.480 --> 0:19:27.720 these Circuit councils suspending Judge Newman, and went through each 0:19:27.720 --> 0:19:31.840 of Judge Newman's objections to the preceding, rejected each of 0:19:31.920 --> 0:19:36.240 them and affirmed the order. I think it's pretty important 0:19:36.280 --> 0:19:43.199 to emphasize that throughout the Judicial Conference Committee adopted a 0:19:43.320 --> 0:19:49.800 standard of deferential reviews that basically, the Committee decided that 0:19:49.880 --> 0:19:55.359 it would reverse or reject the Council's conclusions only if 0:19:55.400 --> 0:19:59.600 the Council abused its discretion. And that's a hard standard 0:19:59.640 --> 0:20:03.199 to me, and in my view, one that was not 0:20:03.560 --> 0:20:08.080 entirely appropriate here where you have a body of judges 0:20:08.320 --> 0:20:13.080 suspending an article free judge from hearing cases for a 0:20:13.119 --> 0:20:14.920 substantial period of time. 0:20:15.520 --> 0:20:18.560 And this is unusual, right. It was just the third 0:20:18.600 --> 0:20:23.120 written decision issued by the Panel in more than three years. 0:20:23.320 --> 0:20:29.160 Yes, the Panel does not issue very many decisions. That assumes, 0:20:29.200 --> 0:20:33.000 of course, that all of their decisions are public. It 0:20:33.040 --> 0:20:37.120 may be that they do some work behind the scenes. 0:20:37.160 --> 0:20:41.200 For example, there's a reference in the opinion just issued 0:20:41.880 --> 0:20:47.880 to the fact that Judge Newman's council asked for interlocutory 0:20:48.000 --> 0:20:53.000 or immediate review of some of the Judicial Council orders 0:20:53.600 --> 0:20:59.560 the Conduct Committee. The Judicial Conference Committee rejected that request, 0:21:00.240 --> 0:21:05.919 but there is no published order separately reflecting that. So 0:21:06.320 --> 0:21:08.479 there may be some other things that the Committee has 0:21:08.520 --> 0:21:12.360 done behind the scenes. But you're right, the formal orders 0:21:12.680 --> 0:21:16.360 are very rare. It's unusual to have more than one 0:21:16.480 --> 0:21:16.920 or two a. 0:21:16.920 --> 0:21:19.400 Year as far as this, because there are a lot 0:21:19.400 --> 0:21:24.600 of moving pieces here. As far as the Judicial Conference's decision, 0:21:25.119 --> 0:21:27.080 is there an appeal from that possible? 0:21:27.680 --> 0:21:33.320 That's a very interesting question because under the rules that 0:21:33.359 --> 0:21:37.280 were adopted by the Judicial Conference to govern these proceedings, 0:21:37.640 --> 0:21:43.000 the full Judicial Conference does have the power to review 0:21:43.640 --> 0:21:48.240 a decision by the Standing Committee. There is no right 0:21:48.359 --> 0:21:53.399 to review by Judge Newman or anyone else, but the 0:21:53.440 --> 0:21:58.359 Full Conference does have the authority to do so, and 0:21:58.840 --> 0:22:01.680 I think there would be a appropriate to do so here. 0:22:01.720 --> 0:22:05.800 There was actually a very interesting and little notice proceeding 0:22:06.000 --> 0:22:11.080 just last year in another case proceeding under the Act, 0:22:11.520 --> 0:22:16.119 where the Judicial Council had affirmed a decision by a 0:22:16.240 --> 0:22:20.200 Chief Judge which dismissed a complaint. This was a complaint 0:22:20.480 --> 0:22:25.720 involving an assertion that two judges had hired a law 0:22:25.720 --> 0:22:31.000 clerk who engaged in some allegedly racist behavior, and the 0:22:31.080 --> 0:22:34.720 Council was the case that had been transferred to another circuit. 0:22:35.040 --> 0:22:41.320 The Council dismissed that complaint. The complainant appealed to the 0:22:41.400 --> 0:22:46.920 Judicial Conference Standing Committee. The Standing Committee directed the Judicial 0:22:46.960 --> 0:22:52.040 Council to reopen the investigation, and the two judges then 0:22:52.520 --> 0:22:59.119 argued that that order, the order requiring reopening, is contrary 0:22:59.160 --> 0:23:03.919 to the statute and the Judicial Council the second circuit. 0:23:04.280 --> 0:23:08.800 The Judicial Council asked the Full Judicial Conference to give 0:23:08.840 --> 0:23:12.200 an opinion on that question, and to my great surprise, 0:23:12.720 --> 0:23:18.320 the Judicial Conference said that the rule authorizing that reopening, 0:23:18.600 --> 0:23:22.080 which has been promulgated by his Judicial Conference, was contrary 0:23:22.119 --> 0:23:25.080 to statue, which indeed it is. And I will just 0:23:25.200 --> 0:23:28.320 say that I made that argument many years ago when 0:23:28.320 --> 0:23:31.760 the rule was first adopted. So we have a very 0:23:31.800 --> 0:23:36.840 recent episode in which the Full Judicial Conference has in 0:23:36.880 --> 0:23:42.679 effect overruled the Standing Committee. So that could happen here also, 0:23:42.880 --> 0:23:45.320 I don't expect it, but it could happen, and I 0:23:45.400 --> 0:23:46.760 have the power to do that. 0:23:47.440 --> 0:23:51.000 Let me just get one thing straight. If she agrees 0:23:51.080 --> 0:23:55.720 to go for medical examinations, can she lift her suspension. 0:23:56.560 --> 0:23:59.480 It's possible, but it is all in the hands of 0:23:59.520 --> 0:24:03.360 the Judicial Counsel. I think the Judicial Council orders are 0:24:03.480 --> 0:24:08.200 very clear that they will not allow her to hear 0:24:08.320 --> 0:24:15.200 cases again unless she complies with the Special Committee's various orders. 0:24:15.760 --> 0:24:19.440 But as I read their orders, they are not guaranteeing 0:24:20.160 --> 0:24:23.960 that if she does, they will let her rehear cases. 0:24:24.320 --> 0:24:26.840 And I think she is now what ninety six years old, 0:24:27.520 --> 0:24:31.960 so time is against her ever hearing cases again. 0:24:32.160 --> 0:24:35.520 I have to say, so this is proceeding on one track. 0:24:35.960 --> 0:24:40.760 Then she sued the Judicial Council, which includes the Chief 0:24:40.840 --> 0:24:44.760 Judge Kimberly Moore and the Federal Circuit's other active judges 0:24:45.040 --> 0:24:48.399 in the DC Federal District Court, and on Monday, the 0:24:48.440 --> 0:24:51.359 District Court judge dismissed most of her suit. 0:24:51.840 --> 0:24:54.560 Yes, allowed a little bit of it to go forward 0:24:54.600 --> 0:24:58.399 a low as I read the order, it's allowing it 0:24:58.480 --> 0:25:03.000 to go forward, not really leaving much of a chance 0:25:03.119 --> 0:25:06.040 for Judge Newman. It's allowing it to go forward on 0:25:06.080 --> 0:25:10.520 what is called facial challenges to the Act. In other words, 0:25:10.640 --> 0:25:15.399 arguments that the Act itself is unconstitutional on its face 0:25:15.720 --> 0:25:18.760 in authorizing some of the things it did. Well. A 0:25:18.840 --> 0:25:22.120 facial challenge to an act of Congress is a very 0:25:22.320 --> 0:25:26.520 very hard challenge to succeed in, which is why I 0:25:26.600 --> 0:25:29.879 say that I don't think it leaves much room for 0:25:30.000 --> 0:25:33.359