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Tuesday, August 22, 2006

NSA: Judges Who Pay Taxes Review Cases Involving America

Judicial Watch claims a tenuous, permitted link between the court, a third party, and a party to a dispute. When a party to a suit makes contributions to a judge, it is the responsibility of the judge is to recuse themselves. The situation with Judge Diggs is inapposite: She was on the board of a firm which donated funds to the ACLU, not the ACLU itself. This is permitted under the Judicial Cannons.

The Judicial Cannons encourage a judge's civic participation, and do not prevent a judge from participating with a civic organizatio firm that simply donates funds to a third party. The Cannons only prohibit Judges from being officers of a firm that regularly appears before the Court.

Not to be lost in the smokescreen, the NSA used intermediaries to hide illegal activity of the NSA, AT&T, and Verizon. Judicial Watch should be commended in demonstrating they uniformly monitor the full judicial spectrum. Should we be so lucky that the RNC might apply the same scrutiny to their President.

* * *

Question: Is it a violation of the Judicial Cannons for a sitting judge to have paid funds to a donor to party of a dispute? No.

If the answer is yes, then (absurdly) judges ruling on cases involving the US government may not lawfully pay taxes.

Judges Who Are Taxpayers Cannot Rule on Cases Involving US Government?

The rules of disqualification and precedents are clear: Judge Diggs has not engaged in any activity which would warrant her disqualification in the ACLU litigation against NSA. For example, as applied the judicial cannons do not prohibit judges from making contributions. Consider Oklahoma:
"Thus, referees, who are considered judges for purposes of compliance with the Code of Judicial Conduct, are permitted to make donations to political parties"Ref
The Judicial Cannons only prohibit a Judge from being on the board of a party to a dispute.

Judge Diggs, by being a member of an organization which only donates funds to the ACLU, cannot be construed to be a board member of the ACLU; nor has she violated any Judicial Cannon. There is no basis to raise the issue of disqualification. DoJ and the Government well know the link is tenuous and entirely consistent with the Judicial Cannons.

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The RNC Position Is Flawed

Putting aside the fact that Judge Diggs has not engaged in any conduct which would require her disqualification, let's take the RNC view of the situation, and show that even if there claims were true, there is no basis to disqualify her.

Moreover, once we take the RNC-approach to the issues of disqualification, you'll see a much larger problem for the White House. By engaging in judicial-like behavior in re NSA reviews, the President has substantially violated the Judicial Cannons, subjecting him to disqualification as an independent judge. The President may have illegally appointed himself a judge, but in doing so he has violated not simply the Constitution, but the specific standards of conduct he says all judges should meet.

The President fails to meet the standards of conduct outlined in the Judicial Cannons which Judge Diggs meets.

All possible RNC issues related to Judge Diggs are frivolous:

  • [...] 1. Was there a "rule of necessity" in play in Michigan? 11 of 15 Although irrelevant, the case can be made that these did apply: All other judges were equally involved with some sort of non-Judicial entity that could feasibly have been, in some way, connected with the ACLU. The same tenuous-link is the very issue behind the NSA warrantless surveillance: People wholly unrelated to any criminal activity were targeted simply because they were x-steps away from the original information. The issue is that not only was the link tenuous, but the way that link was proven was using illegal methods.

  • [...] 2. Is disqualification required? No, and there has been no fair showing by any party that the issue warrants further attention. There is no rule which bars a judge from sitting as an officer on a donor to a party. The only restriction applies to membership on the party to the dispute. This does not apply.

  • [...] 3. Is the interest the judge has shown in the organization insignificant, or something that is more than insignificant? 1 of 4. No, the Judge is not an officer of the ACLU, but an officer on board which donates to the ACLU, not the ACLU itself. Even if the Judge directly donated to the ACLU, this would not necessarily raise any issue of disqualification.

  • [...] 4. Did the court have an interest in the firm? No, this rule only applies to whether the Judge did or did not receive funds from a party, namely the ACLU. This case is the opposite: The Judge has not made any inappropriate donations, and is not a member of the board of the ACLU. As a side note, Judges are permitted to hear cases involving former attorney partners; even if there was a direct relationship between a judge and a party -- which does not apply here -- this may not necessarily be the grounds for disqualification. Ref The relationship between the Judge and the party to the dispute has to be more than minimal, as is the case here.

  • [...] 5. Is there a reasonable basis to question a judge's impartiality? No, but taking this RNC position to the absurd: Any judge that pays taxes to the United States is still permitted to hear cases involving the United States.

  • [...] 6. Did the Judge use their position to influence others' contributions? Ref No, we have the opposite: The Judge has provided funds to a donor to the ACLU, and the judge is not an officer of the ACLU. There is no basis for disqualification.

  • [...] 7. Did the Judge act as an officer of the organization? No. Even if the Judge did provide funds to the ACLU directly -- which she did not -- providing a contribution is not the same as acting as an officer. 4 of 14

    * * *

    A full reading of the Judicial Cannons Shows There is No Basis For Disqualification

    Don't take my word for it: Feel free to read the Judicial Cannons and judge for yourself.

    A. Review the facts about Judge Digg's involvement with the donor;

    B. Look at the Judicial cannons as they relate to third parties;

    C. Explore whether you can find anything that violates the Judicial cannons.

    Ref Page 9 indicates funding is permitted, so long as it does not exceed certain thresholds. Again, this does not apply as the funds were provided to the donor, not to the party of the dispute, the ACLU.

    Ref The appearance of impropriety has to be something that is a legitimate appearance, not a tenuous connection or minimal connection as is the case here, and otherwise no basis for disqualification.

    Ref Judges who are aware of insidious conduct of the US government, are they responsible for resigning from government service? DoJ Staffers know about the illegal NSA activity, but refuse to resign. The same standard does not have any bearing on the situation with Judge Diggs where she was a donor to a firm that contributed to the ACLU, but was not an officer of the ACLU itself.

    Ref: Any claim that Judge Diggs' involvement was improper are absurd. Judges are encouraged to participate in extra-judicial activities, especially when that activity supports legal activity and otherwise supports the advancement of legal understanding in the community.

    Ref: The requirement is that the Judge be free from influence; but the opposite is not true: Judges are permitted to influence public policy through lawful advocacy, so long as that political activity is not linked with the Judge or a promise to do or not do something.

    * * *

    No Basis for Disqualification

    Judicial Watch should be commended for reviewing the matter. However, there is no problem. The real ethical problem would be the other way: Whether the ACLU had paid funds to the Judge. This didn't happen.

    The RNC and DoJ burden is to show: The opinion was or was not influenced by the action of either party. As it stands, it appears the opinion was based on the evidence and arguments, and the tenuous connection Judge Diggs and the ACLU cannot credibly be a credible basis to disqualify the judge.

    To argue that judges may not contribute to any cause would mean that judges who rule on cases involving the United States should be disbarred/sanctioned/admonished because the judge, a taxpayer, has an existing relationship with the US Government. That someone has a pre-conceived notion of what is right or wrong does not prohibit that person from so stating or engaging in conduct consistent with those values, especially when they are matters of the law.

    * * *

    Absurdity Rule: A Sign Of A Flawed Argument

    Using the broad brush, any court in the Untied States, because that judge pays taxes, cannot litigate any suit involving the United States. This is absurd, and exactly what the Republican party wants: To prohibit anyone from making any decision that contradicts the President.

    Taking it further, how can we trust the president to make the right decision involving America? He's provided funds to America and obviously has a conflict of interest. By inference, we would have to conclude that the President, as a taxpayer, is unable to make informed decisions about America. It may be true, but if we are to bar a single judge from doing what is otherwise permitted on the grounds of "lack of objectivity," then the President may not claim objectivity on similar issues.

    The issue is whether one of the parties has influenced the Judge; not whether the Judge has or has not done something that is otherwise legal. Yet, the law does not prohibit, but requires but the Judges and the President to pay taxes. Judges pay taxes, but they are still allowed to sit on cases involving the Untied States.

    * * *

    The Restrictions In the Judicial Cannons Are Not An Issue In This Case

    The rules merely ask the judge to consider the factors, but do not specifically instruct the judge to refrain from any civic action:
    Even with respect to law-related civic and charitable organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely upon a judge’s independence, integrity, and impartiality.Ref

    Rather, the rules state the opposite: That the judge may participate, so long as that participation does not violate the judicial cannons. The cannons do not define "donations" or "nominal financial contributions" as being participation. Any claim that a nominal contribution creates a significant judge-party relationship or prior agreement that would affect the Judge's impendence is without merit.

    The facts before demonstrate the opposite:

    A. Nobody made an improper donation to the judge;

    B. The funds were not contingent upon the judge doing or not doing anything; rather the funds were from the judge without any specific expectation that the party do or not do anything; and without any specific knowledge that the case involving that party would or would not appear before that judge;

    C. The Judge was engaged in lawfully permitted activity that did not warrant disqualification under the Judicial Cannons;

    D. The link between the Judge and the party is too tenuous to warrant concern;

    E. There is no restriction on Judge involvement in non parties, as is the case here.

    There is no case to be made. The Judge has not made a contribution to an organization she should have known would likely have a pending case; that contribution was permitted; and that the judge's contribution was not a requirement for the judge to disqualify herself.

    * * *

    Chief Justice Roberts and Hamdan

    The conduct appears problematic if you are not versed on the judicial cannons which otherwise permit the judge to make a nominal contribution to a civic organization.

    If you want to make a (frivolous, FRE 11d) stink about Judge Diggs, let's hear the results of the Chief Justice Roberts investigation in re Hamdan. Strangely, Roberts' conduct hasn't gotten much attention. Why the inconsistency, RNC?

    * * *

    Judicial Cannons Applied to President: Substantial Violations

    If you're going to claim that a judge, that transfers funds to another entity, cannot hear that case, then you must find that the President -- who has appointed himself a judge in the NSA oversight -- is similarly disqualified, and cannot impartially act when it comes to the NSA 40-45 day review.

    You cannot have it both ways. Once the President, rightly or wrongly, appoints himself a judge, then the President must comply with all the judicial cannons. This President has not only violated the law, but he has substantially violated the Judicial Cannons raising far greater questions about his impartiality and competency to credibly review the NSA issues.

    Unlike the instant case where the Judge provided permissible civic support, the President had a personal interest in the outcome in his review of the NSA activity: To self-define that conduct as legal. The Constitution did not grant the clerk in the White House this power. Rather, the Executive’s powers are finite, and only expressly defined.

    Once a judge takes an oath to protect the Constitution, it is absurd to suggest that any conduct -- substantially consistent with that requirement -- would then be the grounds to disqualify them. The rule of necessity applies. The only people who are capable of reviewing this case are judges who are involved with the Constitution. Moreover, the ACLU cannot be shown to be only an advocate of non-government interests. Rather, they are a group that supports other government employees when they are against private, commercial interests.