“If they are unwilling to say publicly why they believe Judge Newman is unfit to remain on the court, then they ought not say it privately, as a part of a secret hearing by a clandestine tribunal that is arguably unconstitutionally circumventing the proper process.”
On June 20, 2023, the Special Committee of the Judicial Council of the Federal Circuit that is investigating a complaint identified against Judge Pauline Newman issued an Order denying Judge Newman’s request to make a July 13 hearing open to the public, but said it would consider publishing a redacted transcript of the hearing that protects witnesses’ identities. However, as of today, August 1, no transcript has been made available.
In a Clause 8 interview published earlier today, Judge Newman’s counsel said he is under a secrecy order with respect to discussing the hearing but hinted that the process did not allow for a mutual exchange and was rather more akin to an oral argument.
So, as difficult as it is to believe, perhaps the better question is “if” the Federal Circuit’s Special Committee will release a transcript at all—ever.
Impeachment is the Only Constitutional Process
A notice on the court’s homepage indicates that the only materials that have been approved for public release in the ongoing investigation are the June 20, 2023 Order, the June 15, 2023 Letter and all prior orders, available here. “Neither the Judicial Council, Special Committee, nor the Court are providing any additional statement at this time,” says the notice. Which is convenient. You can’t have anything that approximates transparency when you are attempting to impeach a sitting Federal Judge who is supposed to have life tenure.
And let’s not mince words—Chief Judge Moore and the rest of the Federal Circuit is, in fact, attempting to impeach Judge Newman. Indeed, Moore seems to believe that she and the Special Committee have the statutory authority to remove Judge Newman, but that is clearly not the case; it is clearly unconstitutional for the Federal Circuit itself and alone to remove a sitting life-tenured Article III judge. And even the Administrative Office of the United States Courts explains that ultimately the only way to remove an Article III judge is through impeachment by the House of Representatives. So, if this entire charade is ultimately going to need to end with impeachment in the House and trial in the Senate, why is there any need whatsoever for secrecy?
Where’s the Transcript?
Why is there no timeline for release of the transcript? According to IPWatchdog sources, there is concern it will be withheld for some time—perhaps never being released, despite likely being ready. Normally, court transcripts are provided within 1-3 days, and redactions take at most an additional few days. So, where is the transcript? What is the Federal Circuit hiding? And make no mistake, there is only one reason to close a hearing and refuse to publish a transcript—it is to hide something.
In the Special Committee’s June 20 Order, the panel, which includes U.S. Court of Appeals for the Federal Circuit Chief Judge Kimberly Moore, said in response to Newman’s counsel’s June 15 letter asking to open the hearing to the press that doing so “would risk [witness] disclosures and simultaneously impair the usefulness of the argument as the participants attempt to avoid making such disclosures.” Yes, it is absolutely essential to control the press and the court can’t possibly have the public racing to true and accurate conclusions based on a full disclosure of what it is they are attempting to do behind closed doors—which certainly appears to be unconstitutional.
The Special Committee’s Order added:
“In the Committee’s view, counsel will be unable to argue points effectively—and the Committee will not be able to question counsel effectively—if all the participants in the argument must attempt to censor themselves in real time to avoid disclosing details that might publicly identify witnesses or disclose confidential aspects of their statements.”
To call this rationale for secrecy and subversion of the press disingenuous is offensive to those things and circumstances that are merely disingenuous. Again, what is the Federal Circuit afraid of? If they are unwilling to say publicly why they believe Judge Newman is unfit to remain on the court then they ought not say it privately, as a part of a secret hearing by a clandestine tribunal that is arguably unconstitutionally circumventing the proper process. After all, the Special Committee seems to have given up on the farcical attempt to characterize Judge Newman as mentally unfit and instead their theory has shifted to chastise her for not cooperating with a secret tribunal that seemed from the start to be setting up a hit moreso than anything else.
Again, let’s not forget that the proper process to remove a Federal Judge is impeachment by the House of Representatives and conviction at trial in the Senate. And, if there are truly extenuating circumstances requiring the court to act itself, precedent says the Circuit should transfer the case to another Circuit because of obvious and inherent conflicts of interest. So, knowing that, why is Chief Judge Moore hellbent on keeping control of decision making in this case? Why is she conducting the proceeding in secret? Or more accurately, why is she releasing what she wants, preventing Judge Newman from commenting, and conducting secret hearings? This is the type of “process” one expects from a Banana Republic—not one of the Circuit Courts of Appeal in the United States!
Newman’s counsel, Gregory Dolin of the New Civil Liberties Alliance (NCLA), said in the June 15 letter that “[t]hough good reasons may exist for keeping disciplinary proceedings secret when exposing such proceedings to the public may intimidate witnesses or unnecessarily cast doubts on the honorable service of an accused judge, the upcoming hearing raises no such concerns.” Talk about an understatement! What evidence does the Federal Circuit have that a public hearing would lead to the intimidation of witnesses? If a party made such a statement without a shred of proof or corroboration, the court would issue sanctions.
Stop the Subterfuge
The June 20 Order did not guarantee release of the transcript. Instead, it said that the “Committee believes that a better approach to permitting some public transparency pursuant to Judge Newman’s request under Rule 23(b)(7) would be for the Committee to consider releasing a redacted transcript after the argument has been completed.” (emphasis added)
Considering and refusing to release a transcript is not transparency, it is subterfuge. Unless there are some sensitive trade secrets involved, matters of national security, or the bona fide attempt to prevent mafioso like intimidation, it is simply inconsistent with American due process and procedural fairness. Chief Judge Moore and the rest of the Federal Circuit are killing the institution.
Unfortunately, scorched earth representation and an airing of Federal Circuit dirty laundry is becoming a necessity. If they think secrecy of this sort satisfies even basic norms of due process, the entire court should be disbanded because this suggests none of them are fit for service.
You cannot hold the industry and bar to one standard and yourselves to a different standard, Your Honors! You are embarrassing yourselves and eliminating any remaining credibility the court has.
Sunlight is the best disinfectant. And boy does it seem like we need a lot of sunlight at the Federal Circuit.
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