Where is the Red Line?

Trump Judicial Nominee Emil Bove Confirms Before Congressional Committee: Red Line, Non-existent

President Trump recently nominated his former lawyer Emil Bove to a position of Federal Judge on the Appeals bench for the US Court of Appeals for the Third Circuit. Bove currently serves as the Principal Associate Deputy Attorney General at the US Department of Justice (DOJ), and prior to that he was the Acting Deputy Attorney General under the Trump administration.

On June 25, Bove went before the Senate Judiciary Committee to answer questions about his recent nomination by President Trump to a circuit covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands. What is so stunning about this nomination - is Bove’s qualifications - or more pointedly, his temperament and ability to tell the truth. The inquiries made predominantly by Senate Democrats were based upon a whistleblower complaint about his “management style, "ethics,” candor to the courts, temperament, and his willingness to evade judicial orders - all the key attributes and skill set required of judicial officers.

Yet, it is no secret, Mr. Bove’s reputation and record of prosecutorial service is replete with instances that go to the heart of these issues - all of which need redress for a potential judgeship, especially on the federal bench which endows its appointee with life tenure.

During questioning for the judicial appointment, Bove was not only evasive - but lied many times. Hardly qualifications for any judge of any court - let alone a second tier federal court. What I found most troubling, is that Republican Senators never asked any questions that were pertinent to temperament or ethical considerations - but were fawning and dismissive of his abysmal record. The majority of them contravening their own oaths to ensure those who come before them are carefully vetted and qualified. Not only is this a dangerous proposition that can erode the rule of law - but it appears this nomination by Trump is poised to do just that.

A judge must not only exude candor and evenhandedness, but reflect judicial temperance - all of which Bove’s record diametrically reflects the opposite.

For example, when Eric Adams, the sitting Mayor of New York City, was indicted on federal corruption charges, the Trump administration moved the court to “drop the charges” against him, as what appears to be a ‘quid pro quo’ for providing the administration with direct access to immigrants incarcerated in New York City - a “sanctuary city” for swift deportations.

What is most compelling about this recent happening, is none of the prosecutors in the US Attorneys for the Southern District of New York would dismiss the case against the sitting New York Mayor, Eric Adams. In fact, there was a litany of prosecutors who refused: because the corruption evidence against Adams was so compelling. Those individual prosecutors who refused Bove’s unrelenting demands to drop the charges against Adams include:

• Danielle Sassoon: The acting U.S. Attorney for the Southern District of New York refused to dismiss the case, before stating she saw no "good faith" reason to drop it. Sassoon also revealed her office was prepared to seek additional charges against Adams. Sassoon resigned from her post in protest of the “quid pro quo” that Adams assist with immigration if if the case against him was dismissed.

• Hagan Scotten: The lead prosecutor on the case also refused to dismiss the charges and stepped down in protest, stating he expected the Department of Justice would find someone "enough of a fool, or enough of a coward, to file your motion." He wrote in his resignation letter that US laws and traditions do not allow for "using prosecutorial power" to influence elected officials.

• Three other prosecutors to include Cohen, Rohrbach, and Wikstrom resigned after being suspended for refusing to drop the charges against Adams. They stated that a precondition for their reinstatement was to "express regret and admit some wrongdoing by the Office in connection with the refusal to move to dismiss the case." These prosecutors believed, and apparently rightfully so, that such a decision indicated the department’s priorities were that "obedience supersedes all else" - thereby requiring them to abdicate their legal and ethical obligations - something they swore an oath to uphold.

Notably, all these prosecutors resigned their positions rather than engage in unethical behavior as was demanded of them. That is, behavior requiring them to let a guilty man walk free - just because Bove ordered them to do so. Here is the reason why…

The Cannons of Professional Ethics for Legal Professionals, is determined by the American Bar Association, is as follows:

• The Duty of the Lawyer to the Courts - It is the duty of the lawyer to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities. In such cases, but not otherwise, such charges should be encouraged and the person making -them should be protected.

• The Selection of Judges - It is the duty of the Bar to endeavor to prevent political considerations from outweighing judicial fitness in the selection of Judges. It should protest earnestly and actively against the appointment or election of those who are unsuitable for the Bench; and it should strive to have elevated thereto only those willing to forego other employments, whether of a business, political or other character, which may embarrass their free and fair consideration of questions before them for decision. The aspiration of lawyers for judicial position should be governed by an impartial estimate of their ability to add honor to the office and not by a desire.

The Ethical Cannons are adopted into Rules of Professional Responsibility to which all attorney and judges must adhere. Additionally, the American Bar Association (ABA) Model Code of Judicial Conduct applies to Judges.

These rules, often found in codes of judicial conduct, govern their behavior and ensure they maintain integrity, impartiality, and public confidence in the judiciary.

For Judges, the Cannons of Judicial Conduct appears below:

• CANON 1
  A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

• CANON 2
  A judge shall perform the duties of judicial office impartially, competently, and diligently.

• CANON 3
  A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

• CANON 4
  A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Oath and Affirmation Must Have Meaning

Based upon the oath and affirmation lawyers and judges take to uphold the law, Can it rightly be seen as prudent or ethical to let someone ascend to the judiciary with a lifetime appointment who used their position to intimidate and force knowledgeable prosecutors to let a guilty man go free? Or the architect of the pardons of all those who attacked the Capitol on January 6? One who refuses to acknowledge before the Judiciary Committee that Joe Biden won the 2020 election?

The record is replete with very troubling instances of conduct, even using expletives towards Judge Boasberg - the judge who demanded the planes deporting immigrants, such as Kilmar Obrego Garcia who admittedly by DOJ attorneys was mistakenly being deported to El Salvador at the time of the judge’s order. Bove who was in charge, not only failed to have the plane turned around to comply with the judge’s order - but instead chose to lie about it, saying “too late” the plane had already landed in El Salvador - refusing to turn over the flight log to the judge when required, and later refusing - even claiming the inability to bring Garcia back!

A Precious Moment of Questioning by Senator Adam Schiff of CA

This round of questioning By Senator Schiff on the recent Judicial Committee hearing goes straight to the heart of Bove’s temperament and penchant for dishonesty. Watch and decide if you would want a man such as Bove to ascend to the position of a federal appeals court judge, carrying with it a lifetime appointment. I know what my answer would be…what about you?

Notes:

https://www.durbin.senate.gov/newsroom/press-releases/durbin-questions-emil-bove-in-senate-judiciary-committee-judicial-nominations-hearing

https://www.nbcnews.com/politics/justice-department/whistleblower-says-top-doj-official-suggested-ignoring-court-orders-de-rcna214763

https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/

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