A theory of prosecution for five Supreme Court justices

 

This is the first article in the Globe and Intelligencer's "On the Federalist Society" 

series.  The second article in this series will be published on Sunday, November 1st 

of 2020. 

    This article is a statement of probable cause.  It is the belief of this author that individuals associated with the organization known as "The Federalist Society" have committed fraud against the United States of America by engaging in a form of judicial racketeering that has allowed wealthy individuals and dark money groups to gain improper influence over our nation's judicial system.  This activity has allowed the delivery of preferred verdicts for wealthy individuals and corporate entities, and deprived the American people of their right to a free and impartial judiciary. This article will focus on the charges to be filed against individual judges who have participated in this scheme for the purpose of delivering preferred rulings to Federalist Society donors.  

    The standard of probable cause requires a reasonable belief that a crime has been committed, before warrants for an arrest, or search of a premises may take place.  This article will address the sections of the US Title code recommended to be applied; briefly address relevant case-law and statements from Federalist papers #78 and #10; and present a brief argument of limits of judicial immunity.  Part II of this article, which will be posted to this blog on Sunday, November 1st, will review key items of evidence from recent Senate presentations and reports that support claims that the Federalist Society is engaged in improper activity.  

    It should be noted that presenting this argument requires a great deal of rhetorical discipline from prosecutors.  While it is true that judges have absolute immunity for the rulings they issue and statements they make in their decisions, they are not absolutely immune from legal action.  The area of behavior that is legally actionable is that which occurs outside of the courtroom: including the acceptance of contributions from wealthy individuals, corporate interests and dark money groups; the use of those funds to groom students who have radical right-wing political views; then guiding those students through academia, helping to get them placed in endowed academic chairs and ultimately seeking to get those individuals appointed to State Supreme and Federal Courts.  That combination of behaviors ultimately frustrates the ability of the Federal Judiciary to function in a free and fair manner.  In the case of judges, it is contact with plaintiffs that occurs outside of the courtroom that presents the opportunity for legal action.  Conservative organizations frequently bring together large numbers of conservative politicians, Federalist Society members, and wealthy corporate donors.  Examples of the kinds of benefits granted to judges once they are seated include receipt of emoluments such as speaking fees, travel, lodging.  Those emoluments should be the focus of prosecution.  Prosecutors should also focus on issues such as reports of debts that mysteriously disappear, scholarships granted retroactively, or granted to the children of State Supreme and Federal court judges, or individuals living in apartments that are being rented out at below market rates.  Failure to focus intently on emoluments, and any attempt to try to argue a case by presenting language from a judge's decision, raises the risk that an entire case may be thrown out because the prosecutor is trying to prosecute behavior for which the judge has legal immunity.  Prosecutors should also seek discovery of internal Federalist Society communications, especially information about the organization's funding, and it's relationship to the State Policy Network.  

    The sections of the US Title Code that justices should be charged under include 18 USC §§ 371 and 1031.  18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States states:  "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."  In this case, that there are more than two people involved is obvious.  This is a conspiracy that involves numerous members of the Federalist Society organization.  The standard employed for the definition of defraud comes from two Supreme Court cases cited in Justice Department guidance for prosecutors:  "Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). In Hass the Court stated:

    "The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

Hass, 216 U.S. at 479-480. In Hammerschmidt, Chief Justice Taft, defined "defraud" as follows:

"To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention."

    It may be argued that racketeering activities by the Federalist Society meet the standard of "defraud" outlined in both of these cases.  The grooming and delivery of activist judges, and the choice of the Republican Party to select the overwhelming majority of judicial nominees from that grooming organization clearly has the effect of obstructing the American people's right to a free and fair judiciary, and destroying the credibility of that Judiciary.  There is also no question that as the number of Federalist Society members in State Supreme and Federal Courts has grown, there has been a growing sense among the American people that the rule of law in this country has been defeated by "misrepresentation, chicane and over-reaching."  The reaction of the American people to the current state of affairs is entirely appropriate.  Alexander Hamilton quotes Montesquieu in Federalist #78: "There is no liberty if the power of judging be not separated from the legislative an executive powers."  For an organization to groom Judicial candidates according to the wishes of wealthy political donors, and for a political party and a President to choose judicial candidates almost exclusively from among the membership of such an organization, constitutes the exact threat to liberty that Hamilton was referring to.  The tribalism that such an organization fosters is also a perfect example of the danger of faction that Madison warned about in Federalist #10 when he said: "A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good."  There is perhaps no better example of the rancor and bitterness that an organization like the Federalist Society breeds that Supreme Court Justice Brett Kavanaugh's meltdown during his Senate confirmation hearing, where with raised voice and tearing eyes he promised dire revenge on the Democratic Party.  

    18 U.S. Code § 1031 is the section of the US Title Code that deals with "Major fraud against the United States".  There is no question that participating in a scheme that undermines the independence of State and Federal courts, and which turns the problem of political faction into a cancer that results in brazenly political rulings from Federalist Society judges, including concerted efforts to assist the Republican Party in its efforts to suppress voting, and limit gun control laws.  It is not possible to ascribe a monetary value to the damage done to the country by the actions of the Federalist Society, and prosecutors should not risk having cases thrown out of court by attempting to ascribe any such value.  The ultimate goal of the prosecution should be the imprisonment of those individuals who have sought to pervert the American Justice system, to seek establishment of legal precedents that will create strict guidelines for the behavior of Federal Judges, and generate research that can guide the crafting of legislation that will limit the impact that political action groups may bear on the future selection of State and Federal judges.  

    The general tenor of legal immunities for government officials is that immunity may only be granted for official acts associated with performing the role of a government officer. An example is the Speech & Debate Clause, where members of Congress are immune from prosecution for statements they make within the Congressional Chamber, but discussions that occur with lobbyists or even with Executive Branch staffers are not protected by the same immunity.  It may be argued that all of the limits on immunities provided to the President of the United States, must also apply to Federal Judges, including members of the Supreme Court.  The Constitution states that judges of the Superior and Inferior courts "shall serve during periods of good behavior".  Hamilton writes in Federalist #78 that "The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government."  The standard of good behavior in the modern age must begin with the laws of the Federal and State governments, and one can hardly argue that judges who are accessories to a conspiracy to undermine the Federal Judiciary and deliver preferred rulings to wealthy conservative donors are demonstrating "good behavior".  Such an argument may be further advanced by the "separate but equal" clause of the Constitution.  To adopt any standard of behavior for judges other than the same laws that govern the rest of the populace would be to turn the Judiciary into a specially protected class that has the ability to create their own separate code of law.  Such a principle would violate the common law principle that "no man may judge his own cause".  One could also argue that key Supreme Court cases which limit the legal immunities of the Presidency must also apply to Federal judges.  Again, to grant the judiciary any special privilege which exceeds the privileges and immunities granted to the chief executive would be to put judges above the President, and in so doing, would ultimately raise the Judiciary to a level of authority which exceeds that of the other two branches of government.  Such an argument brings to mind several key cases, such as United States v. Nixon,  which implies that "Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified [Judicial] privilege of immunity from judicial process under all circumstances."; and Trump v. Mazars, which suggests that in their personal affairs, including all matters not directly related to the hearing of cases and issuing of opinions, Judges have no special privilege not available to the average citizen.  Prosecutors must be vigilant during oral arguments and immediately seek the striking of any arguments which appear to be an improper application of the concept of Judicial Immunity.  

    The arguments above have provided a thumbnail description of activities by the organization known as the Federalist Society, and described in case-law and founding documents how the organization's activities are counter to the intent of both Federal Law, and statements on the role of the judiciary from the Founding Fathers.  The discussion of Judicial Immunity was intended to demonstrate that while Justices do have legal immunity for the rulings they issue and language in the decisions they write, that immunity is not absolute, and the Constitutional requirement of "good behavior" along with mentions in the Federalist Papers of the dangers of branches of government unified by political factions, provides a legal basis for pursuing action against the organization.  In Part II of this paper,  which will be published on Sunday, November 1st, we will examine several statements from Sheldon Whitehouse's presentation during the Senate Confirmation hearing of Amy Coney-Barrett, as well as reports that were recently issued by Senate Democrats on the Capturing of the US Court System, and the National Rifle Association's efforts to gain control over the US court system. 

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A note on the commenting policy: if you're able to present a coherent counter-argument based on legal precedents, then I will interact with you in the comments.  If all you're going to do is spout nonsense and childish insults, then your comment will be deleted.