Republican representative Elise Stefanik has recently been on a recriminatory roll. She has very publicly focused critical attention on several university presidents, state judge Arthur Engoron, federal district court judge Beryl Howell, and, most recently, Secretary of Defense Lloyd Austin. In this column, we analyze and evaluate the ethics complaint against Judge Howell that Ms. Stefanik filed with the US Court of Appeals for the DC Circuit. It is posted on Ms. Stefanik’s website.
In the complaint, Ms. Stefanik repeatedly uses the word “partisan” in relation to Judge Howell and others with whom Judge Howell has present and past relationships. The basis for this characterization appears to be affiliation with the Democratic Party. Judge Howell worked for and was nominated by Democratic Senator Patrick Leahy and was appointed by Democratic President Barack Obama. The appointment of a federal judge routinely involves support by a Democratic or Republican senator and appointment by either a Democratic or Republican president. If such party patronage qualifies Judge Howell as partisan, then every federal judge is partisan. In assessing Judge Howell’s potential partisanship, it is relevant that Judge Howell was confirmed in the Senate by a voice vote, which indicates that Republican Senators did not see her as partisan.
At the core of Ms. Stefanik’s complaint are comments made by Judge Howell at a ceremony in which she received a “champion award” from the Women’s White Collar Defense Association. It should be noted that the receipt of such an award raises no ethical problem for a judge. Advisory Opinion No. 46 of the Committee on Codes of Conduct of the Administrative Office of the US Courts states that judges “should ordinarily be able to accept such honors,” noting that “the entire judiciary benefits from public recognition of one of its members.”
Ms. Stefanik’s complaint points out that at the ceremony Judge Howell acknowledged her prior work experience and longstanding relationships with several prominent lawyers who have served or are serving in the US Justice Department. Judge Howell praised the lawyers and their work. Ms. Stefanik appears to suggest that the existence of these relationships and Judge Howell’s acknowledgment of them were ethically inappropriate. However, many state and federal judges have just such relationships because many judges worked at some point in their careers in a prosecutor’s office. Of the 200 federal judges former President Trump appointed, for example, 60 served as federal prosecutors and 24 served as state prosecutors. So, if Judge Howell should be ethically sanctioned or disqualified on the basis of such relationships, so should a great many other judges, including many Trump appointees.
A cornerstone of Ms. Stefanik’s complaint, though, is what Judge Howell said regarding the January 6 assault on the capital. Judge Howell has presided over many criminal cases arising from the January 6 assault, including sentencings during which the causes of the crime are highly relevant. She stated that many of these cases resulted from “big lies” about the last presidential election. Judge Howell was speaking from personal experience. It is entirely appropriate for judges to address publicly what they observe as the causes of the crimes committed in cases that come before them. Such commentary by judges increases public awareness, which in turn should lead to reforms or other actions to address the causes. Judicial acknowledgment of the role of drug addiction as a root cause of many crimes, for example, has led to the innovative creation of drug courts across the United Sates.
Judge Howell is not the only federal judge to publicly address the causes of the crimes committed on January 6. For example, US District Judge Royce Lamberth, appointed by Republican President Ronald Reagan, said this at a sentencing of a January 6th defendant: “The Court is accustomed to defendants who refuse to accept that they did anything wrong. But in my 37 years on the bench, I cannot recall a time when such meritless justifications of criminal activity have gone mainstream.” Judge Lamberth continued: “I have been shocked to watch some public figures try to rewrite history, claiming rioters behaved in an orderly fashion like ordinary tourists, or martyrizing convicted Jan. 6 defendants as political prisoners or even, incredibly, hostages. That is all preposterous.”
At one point in her comments, Judge Howell quoted from Boston College History Professor Heather Cox Richardson’s recent book the proposition that big lies are a precursor to authoritarianism. Ms. Stefanik relies heavily on this comment as a basis for asserting that Judge Howell’s comments amounted to election interference.
First of all, it is worth noting that Professor Richardson is a tenured professor of history. She is the author of many well-regarded books, including her most recent, which has been favorably reviewed. Accordingly, she is hardly an unreliable source to cite. Second, Professor Richardson’s view that big lies can lay the groundwork for authoritarianism is neither novel nor controversial. In support of this point, she cites the work of noted scholars, such as Hannah Arendt and Eric Hoffer. Harvard Professors Steven Levitsky and Daniel Ziblatt offer the same assessment of big lies in their book How Democracies Die. Professor Richardson quotes the work of Adolf Hitler on the usefulness of big lies and uses his rise to power as an example of how authoritarians have effectively used big lies to rise to and remain in power.
Does Ms. Stefanik’s claim of election interference have any merit? In answering this question, several points are relevant.
Judge Howell made no reference to Mr. Trump or any other candidate for office. The event at which she spoke was not sponsored by a political party and its purpose was not generating political or financial support for any candidate. In addition, the cases she is presiding over and about which she spoke are aimed at deterring election interference.
It is especially ironic for Ms. Stefanik to accuse a federal trial court judge of election interference when federal district court judges formed the primary line of defense against the barrage of bogus election suits brought by Trump-affiliated lawyers across the United States.
Ms. Stefanik’s ethics complaint should not, and almost certainly will not, result in a referral for investigation much less a finding of any ethically inappropriate behavior. Why might Ms. Stefanik have made such a transparently baseless complaint?
In seeking to answer this question, it should be noted that Ms. Stefanik is an enthusiastic advocate for and acolyte of Donald Trump. She is apparently on Trump’s short list for the vice-presidential position on the Republican ticket for next fall and has said she would be “honored to serve in any capacity in a Trump administration.” And finally, Judge Howell is presiding over prosecutions of which Trump has been very critical, calling the January 6 defendants “political prisoners” and “hostages.”
Taken together, these facts, at the very least, strongly suggest that Ms. Stefanik’s complaint is aimed at currying favor with Trump by echoing his claims rather than raising any viable ethics issue.
