Category Archives: conflict of interest laws

“Biden set to announce support for major Supreme Court changes”

Washington Post:

President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans….

The announcement would mark a major shift for Biden, a former chair of the Senate Judiciary Committee, who has long resisted calls to make substantive changes to the high court. The potential changes come in response to growing outrage among his supporters about recent ethics scandals surrounding Justice Clarence Thomas and decisions by the new court majority that have changed legal precedent on issues including abortion and federal regulatory powers.

Share this:

ProPublica Report on Judicial Recusal

Released today:

A ProPublica analysis found a lack of transparency regarding conflicts plagues federal and state courts where loose rules, inconsistent enforcement and creative interpretations of guidelines routinely allow judges to withhold potential conflicts from the parties before them.

In an examination of more than 1,200 federal judges and state supreme court justices, ProPublica, in partnership with student journalists at Boston University, found dozens of judges, including both Republican and Democratic appointees, who chose not to recuse when facing potential appearances of impropriety involving familial financial connections. Ethics experts say that the judges’ interpretation of the rules may often lie within the letter of the law, but at the expense of its spirit.

Share this:

“Justices Thomas and Alito Ignored Calls for Recusal in Jan. 6 Case”

NYT:

Justices Clarence Thomas and Samuel A. Alito Jr., rejecting calls for their disqualification, participated in the case, siding with a member of the mob that stormed the Capitol on Jan. 6, 2021.

Experts in legal ethics have said that the activities of the justices’ wives raised serious questions about their impartiality.

Virginia Thomas, known as Ginny, helped shape the effort to overturn the 2020 election. “Biden and the Left is attempting the greatest Heist of our History,” Ms. Thomas wrote in a text message to Mark Meadows, President Donald J. Trump’s chief of staff, during the fraught weeks between the 2020 presidential election and the Jan. 6 attack.

Justice Thomas has not given a public explanation for remaining on the case, and he has taken part in other cases arising from the election and the 2021 attack. But he recused himself in October from a case concerning John Eastman, a conservative lawyer who had advised Mr. Trump. Justice Thomas, for whom Mr. Eastman had served as a law clerk, gave no reasons for his decision to disqualify himself from that case.

Justice Alito has been more forthcoming. He explained why he would not recuse from the case in a letter to Democratic lawmakers in May after The New York Times reported that flags that have been used to support the “Stop the Steal” movement had been displayed at his homes in Virginia and New Jersey.

The justice said his wife, Martha-Ann, was responsible. “My wife is fond of flying flags,” he wrote. “I am not. She was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”…

Share this:

“Investors, worried they can’t beat lawmakers in stock market, copy them instead”

WaPo:

Members of Congress hear a lot of secrets: classified briefings, confidential previews of pending legislation and the private opinions of constituents, regulators, corporate executives and world leaders.

Watchdog groups have long believed that somelawmakers use that information to make money in the stock market. Now a loose alliance of traders, analysts and advocates is trying to let Americans mimic the trades elected officials make, offering tongue-in-cheek financial products — including one named for former House speaker Nancy Pelosi (D-Calif.) and another that refers to Sen. Ted Cruz (R-Tex.) — that track purchases and sales after lawmakers disclose them.

Collectively, these investment vehicles haveattracted hundreds of millions of dollars.At times, congressional investigatorshave used them to keep tabs on suspicious trading activity, according to people familiar with these investigations who spoke on the condition of anonymity because they are not authorized to speak to the media.

Share this:

“Experts Question Alito’s Failure to Recuse Himself in Flag Controversy”

Adam Liptak for the NYT:

Supreme Court justices seldom give reasons for their decisions to recuse themselves. Even rarer are explanations for deciding to participate in a case when they have been accused of conflicts of interest.

Justice Samuel A. Alito Jr. is an exception. He seems positively eager to explain himself. But whether his explanation has helped or hurt his cause is open to question.

On Wednesday, Justice Alito wrote letters to Democratic lawmakers saying he was not only permitted but also obligated to sit on two cases arising from the Jan. 6, 2021, attack on the Capitol despite controversies over flags displayed outside his houses associated with the “Stop the Steal” movement.

Experts in legal ethics said they welcomed Justice Alito’s decision to explain himself. But they were not persuaded by the reasoning in his letters, which said the flags had been flown by his wife and so did not require him to step aside in the pending cases, on whether former President Donald J. Trump is immune from prosecution and on whether a federal obstruction law covers participants in the Jan. 6 assault….

Amanda Frost, a law professor at the University of Virginia, said the quality of the reasoning in Justice Alito’s letters had shortcomings.

“I agree that Justice Alito’s wife has a First Amendment right to express her views,” Professor Frost said. “But if she does so on their shared property, in a way that would lead a reasonable person to question his impartiality, then he should respond by recusing himself.”

Professor Frost added that her conclusion would be no different had the controversy involved a liberal member of the court like Justice Ruth Bader Ginsburg, who died in 2020. “I would say the same,” she said, “if Justice Ginsburg’s husband had placed a ‘Gore won’ sign on the lawn of their shared home while the Bush-Gore election was being contested in the courts.”

Share this:

WTF Justice Alito?

NYT:

Last summer, two years after an upside-down American flag was flown outside the Virginia home of Justice Samuel A. Alito Jr., another provocative symbol was displayed at his vacation house in New Jersey, according to interviews and photographs.

This time, it was the “Appeal to Heaven” flag, which, like the inverted U.S. flag, was carried by rioters at the Capitol on Jan. 6, 2021. Also known as the Pine Tree flag, it dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for former President Donald J. Trump, for a religious strand of the “Stop the Steal” campaign and for a push to remake American government in Christian terms.

Three photographs obtained by The New York Times, along with accounts from a half-dozen neighbors and passers-by, show that the Appeal to Heaven flag was aloft at the Alito home on Long Beach Island in July and September of 2023. A Google street view image from late August also shows the flag.

The photographs, each taken independently, are from four different dates. It is not clear whether the flag was displayed continuously during those months or how long it was flown overall.

An “Appeal to Heaven” flag and other flags flying outside a beach house owned by Justice Samuel A. Alito Jr.
A Google street view photo taken in August 2023 shows the flag flying at the Alitos’ house.

Justice Alito declined to respond to questions about the beach house flag, including what it was intended to convey and how it comported with his obligations as a justice. The court also declined to respond….

In coming weeks, the justices will rule on that case, which could scuttle some of the charges against Mr. Trump, as well as on whether he is immune from prosecution for actions he took while president. Their decisions will shape how accountable he can be held for trying to overturn the last presidential election and his chances at regaining the White House in the next one.

The disclosure about the new flag is troubling, several ethics experts said in interviews, because it ties Justice Alito more closely to symbols associated with the attempted election subversion on Jan. 6, and because it was displayed as the obstruction case was first coming for consideration by the court.

Judges are not supposed to give any impression of bias, yet the flag could be seen as telegraphing the Alitos’ views — and at a time when the justices were on the cusp of adopting a new ethics code. “We all have our biases, but the good judge fights against them,” said Charles Geyh, a law professor at Indiana University Bloomington. “When a judge celebrates his predispositions by hoisting them on a flag,” he added, “that’s deeply disturbing.”

I was uncertain if the initial revelation of the first flag merited Justice Alito’s recusal in the first case, but I now believe he must recuse in the Trump immunity and related cases. His impartiality could be reasonably questioned here. There’s no blaming it on his spouse this time in any credible way.

Share this:

“Time to Close the Hatch Act’s Escape Hatch”

Hampton Dellinger for Politico:

Since the Hatch Act was passed in 1939, government workers have faced strict limits on their political activity. And rightly so. Federal employees should be on the job for the public good, not partisan ends. Violators can be reprimanded, fined and even barred from federal service.

While the Hatch Act is broad on paper, a loophole has emerged in practice: senior White House personnel (including assistants to the president and others deemed commissioned officers) aren’t being subjected to the law’s full enforcement. Today, that changes.

I was recently nominated and confirmed to lead the Office of Special Counsel, the independent agency responsible for enforcing the Hatch Act for millions of federal workers. And after a careful review of past and present policies, I’m updating my agency’s enforcement approach to put an end to such differential treatment.

OSC brings Hatch Act violations to the Merit Systems Protection Board, an independent and quasi-judicial body, and the board can impose a range of sanctions if it determines the rules were broken.

But, in the past, OSC has declined to bring MSPB cases against White House officials. Instead, OSC has left the question of whether punishment should be imposed to the sole discretion of the president. This distinction creates separate and not automatically equal systems of accountability for violators, one where an independent adjudicator (the MSPB) can impose sanctions and another where it is left to the president to dole out — or not — any consequences….

And while I have great respect for the Department of Justice’s Office of Legal Counsel, I do not believe (as my office has suggested in recent years) that a 1978 DOJ opinion assessing draft legislation should be considered sufficient support for OSC to unequivocally exempt White House staff from the same Hatch Act enforcement regime other federal workers face.

As a result, I am announcing that prior OSC statements that White House officials cannot face Hatch Act enforcement in the same way other federal civilian employees do are no longer in effect. It is time to close the Hatch Act’s escape hatch….

Share this:

“Prosecutor leaves Georgia election case against Trump after relationship with district attorney”

AP:

A special prosecutor who had a romantic relationship with Fulton County District Attorney Fani Willis formally withdrew Friday from the Georgia election interference case against Donald Trump after a judge ruled one of them had to leave for the case to move forward.

Attorney Nathan Wade’s resignation allows Willis to remain on the most sprawling of the four criminal cases against the presumptive Republican nominee in the 2024 presidential election.

But the long-term damage to the public perception of the prosecution remains unclear, particularly in light of Trump’s relentless barrage of attacks on the pair who pledged to hold Trump accountable but found their own actions under a public microscope…

Share this:

“Judge rules Fulton DA Fani Willis can stay — if Wade steps aside”

AJC:

A Fulton County judge on Friday gave District Attorney Fani Willis a stark choice: Either recuse yourself and your office from the election interference case against Donald Trump or cut ties with your lead prosecutor and former lover.

The decision would allow Willis, if special prosecutor Nathan Wade withdraws, to continue prosecuting the case against the presumptive Republican nominee for president and his 14 remaining co-defendants. It also could resolve a disqualification motion that has upended the monumental case for the last two-plus months, turning it into a spectacle with salacious allegations of misconduct against one of the most recognizable DAs in the nation.

“Whether this case ends in convictions, acquittals or something in between, the result should be one that instills confidence in the process,” Fulton Superior Court Judge Scott McAfee wrote. “… Any distractions that detract from these goals, if remedial under the law, should be proportionally addressed.”

In a 23-page order, McAfee said he by no means condones Willis’ “tremendous lapse in judgment” for having the relationship with Wade, who has billed more than $728,000 in legal fees that he used to help pay for cruises and vacations he took with the district attorney in 2022 and 2023.

However, in a major finding, the judge said the defense had “failed to meet their burden of proving that the district attorney acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor.” If McAfee had found otherwise, he would have had to disqualify Willis and her office from the case.

But McAfee did find that “the established record now highlights a significant appearance of impropriety that infects the current structure of the prosecution team – an appearance that must be removed through the state’s selection of one of two options.”…

Share this:

Poor Disclosure from Some State Supreme Courts

Fix the Court release:

State supreme court justices have the power to impact federal elections, redistricting, immigration, reproductive rights, gun rights and more, and yet most states are suppressing information about their top judges — either by making it difficult to obtain financial disclosure reports or requiring little to no information to be disclosed — in a way that shields them from accountability, according to a new report released today by Fix the Court.

In short, 24 of the 48 the states that require annual judicial disclosures don’t post their justices’ reports online, and 30 require less information to be disclosed than what the federal judiciary requires…..

Share this:

“Justice Clarence Thomas was the deciding vote in a case he never should have heard”

Kimberly Atkins Stohr Boston Globe column:

Even before the Supreme Court practically nullified the 14th Amendment’s clause banning insurrectionists and their supporters from seeking federal office, another decision all but ensured that outcome. And it was made by a single justice: Clarence Thomas….

And he should have played no part in the case’s consideration.

That’s because on that Jan. 6, in the crowd of onlookers who descended on the nation’s capital and gathered at the Ellipse at Trump’s invitation — “will be wild!” he promised — was Virginia “Ginni” Thomas, the justice’s wife.

We would later learn that Ginni Thomas had also lobbied dozens of state lawmakers to choose fraudulent presidential electors and texted Trump’s chief of staff to urge him to “release the Kraken” and embrace the conspiracy theories of attorney Sidney Powell, who now stands criminally convicted for her efforts in the scheme.

These facts led to numerous calls for Thomas to recuse himself from the Colorado ballot case.

Share this:

“Fani Willis admits relationship with prosecutor on Trump Georgia case”

WaPo:

Fulton County District Attorney Fani T. Willis (D) admitted she had a personal relationship with an outside prosecutor she appointed to manage the election interference case against former president Donald Trump and his allies but denied claims that the relationship had tainted the proceedings.

In a 176-pagecourt filing on Friday, Willis called the claims against her “meritless” and “salacious” asked a judge to reject motions from Trump and other co-defendants that seek to disqualify her and her office from the case and to do so without a hearing. She denied claims of misconduct and said there was no evidence that the relationship between her and special prosecutor Nathan Wade had prejudiced the case.

Willis’s response came more than three weeks after MikeRoman, one of Trump’s remaining 14 co-defendants in the criminal case and a former high-ranking campaign aide during the 2020 election, alleged in a court filing that Willis was engaged in a “personal, romantic relationship” with Wade, whose firm has been paid more than $653,000 by the district attorney’s office since he was tapped as an outside prosecutor on the case in November 2021.

Share this:

“Prosecutor on Trump Georgia Case Avoids Testifying in Divorce Proceeding”

NYT:

The special prosecutor leading the election interference case against former President Donald J. Trump will not have to testify this week about an alleged romantic relationship with his boss, Fani T. Willis, the Fulton County district attorney, after reaching a temporary agreement in his divorce case on Tuesday.

The agreement between the special prosecutor, Nathan J. Wade, and his wife, Joycelyn Wade, leaves unanswered for the time being a question that has created potential peril for Ms. Willis’s high-profile prosecution of Mr. Trump and 14 of his allies.

Ms. Willis hired Mr. Wade, a lawyer in private practice, in 2021 to help run the Trump case, saying that she needed a trustworthy confidant for the job. But a filing three weeks ago from one of Mr. Trump’s co-defendants, Michael Roman, claimed that the two prosecutors were romantically involved and had taken vacations paid for by Mr. Wade.

Mr. Roman argues that this amounts to a conflict of interest, and is grounds for removing both prosecutors, as well as Ms. Willis’s entire office, from the case.

Share this: